
    INTERNATIONAL & G. N. RY. CO. v. MATTHEWS BROS.
    (Court of Civil Appeals of Texas. Austin.
    June 18, 1913.)
    1. Raimoads (§ 441)—Killing Animals— Horses — Switch Limits — Burden oe Proof.
    Where plaintiffs’ horse was killed by defendant railroad company at a point within the switch limits of a town, where the railroad company was not required to fence its track, plaintiffs could not recover without proof that defendant was negligent in respect to the killing, and that such negligence was the proximate cause thereof.
    [Ed. Note.—For other cases, see Railroads, Cent. Dig. §§ 1575-1595; Dec. Dig. § 441.]
    2. Railroads (§ 417)—Killing Animals— Negligence—Evidence.
    Where plaintiffs’ horse was killed by defendant railroad company within the switch limits of a town, evidence that the train by which the horse was probably killed passed through the town very fast, without blowing the whistle or sounding the bell, was not of itself sufficient to establish the railroad company’s negligence.
    [Ed. Note.—For other cases, see Railroads, Cent. Dig. §§ 1484-1487; Dec. Dig. § 417.]
    3. Negligence (§ 121) — Negligent Act — Causal Connection—Presumptions.
    Neither an alleged negligent act or omission, nor the causal connection between it and the injury, can be presumed, but the burden is on plaintiff to prove it.
    [Ed. Note.—For other cases, see Negligence, Cent. Dig. §§ 217-220, 224-228, 271; Dec. Dig. § 121.]
    4. Railroads- (§ 441)—Killing Animals— Negligence—Res Ipsa Loquitur.
    Evidence that plaintiffs’ horse, with two of his legs broken, was found on defendant’s railroad track within its switchyard, and that the train by which the horse was probably struck passed through the town at high speed, without blowing the whistle or sounding the bell, was insufficient to raise a presumption of defendant’s negligence, so as to require defendant to offer exculpatory evidence.
    [Ed. Note.—For other cases, see Railroads, Cent. Dig. §§ 1575-1595; Dec. Dig. § 441.]
    Appeal from Montgomery County Court; 5. A. McCall, Judge.
    Action by Matthews Bros, against the International & Great Northern Railway Company. Judgment for plaintiffs, and defendant appeals.
    Reversed and remanded.
    W. M. Williams and A. L. Kayser, both of Conroe, for appellant. S. A. Crawford, of Willis, for appellees.
    
      
       For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   RICE, J.

On the night of December 18, 1911, one of the appellees’ horses was found injured on appellant’s track in the town of Willis, from the effects of which it died, and this action was brought by them in the justice’s court against appellant to recover damages therefor. A trial there having resulted in favor of appellees, an appeal was taken to the county court, where a similar judgment was had against appellant, from which this appeal is prosecuted.

After general demurrer and general denial, appellant pleaded specially that the horse, if killed by it, was killed ih. the settled portion of the town of Willis and within its switch limits, where public necessity and convenience required its track to be left unfenced. The evidence showed that the animal was found with both legs broken lying on the track within the switchyard of appellant, a place not required to be fenced. Railway v. Blankenbeckler, 13 Tex. Civ. App. 249, 35 S. W. 331. Hence, before the appellees were entitled to recover, they must show that the appellant was guilty of negligence in respect to such killing, and that the same was the proximate cause thereof.

Has this been shown by the evidence? We think not. Ibis true that the proof shows that the animal was found injured as above described on the railway track, and that it was likely struck by a passing train, most probably by the 4 o’clock morning train going south, which it appeared from the testimony ran very fast through the town, without blowing the whistle or sounding the bell; but it has been held that this, in and of itself, does not show negligence. See T. & P. Ry. Co. v. Shoemaker, 98 Tex. 451, 84 S. W. 1049; Elliott on Railroads, §§ 1204-1586. No witness saw the accident, and the details are not given, and we are left entirely to conjecture as to how it occurred. It might be concluded that the animal was on the track, and the engineer saw it in time to have prevented the injury, and that he was negligent in failing to do so, and, if these facts were shown, it would be our duty to sustain the judgment; but we may just as easily infer that the animal, when the train came along, was frightened by its noise, and suddenly ran in front thereof and was killed, without.fault of the servants of the company, and, if so, no recovery could be had. It is true it is shown that the track was straight, and the bell was not rung or the whistle blown; but it does not appear that this was the proximate cause of the injury. See M., K. & T. Ry. Co. v. Baker, 99 Tex. 452, 90 S. W. 869.

The burden was upon the appellees, not only to show negligence on the part of appellant, but that such negligence, if any, was the proximate cause of the injury. “This fact of causal connection between an alleged negligent act or omission and an injury can no more be presumed than can the act or omission itself.” T. & P. Ry. Co. v. Shoemaker, 98 Tex. 456, 84 S. W. 1052; M. P. Ry. Co. v. Porter, 73 Tex. 307, 11 S. W. 324; Tex. & N. D. Ry. Co. v. Crowder, 63 Tex. 505.

It is true there was no evidence offered on the part of appellant explaining the accident; but it is said in 2 Wharton on Evidence, § 1268, that the defendant is not called on to bring evidence of exoneration until plaintiff has made a prima facie case. No presumption, therefore, can be indulged against-it on account of its failure in this respect. The evidence-leaves us in the dark as to the circumstances surrounding the accident, -without which we are wholly unable to determine whether the appellant was guilty of negligence in reference thereto.

This case is very similar to that of Railway v. Anson, 101 Tex. 198, 105 S. W. 990, upon the authority of which we hold that the evidence was insufficient to sustain the judgment, and sustain the assignment that the court erred in failing to give a peremptory charge in favor of appellant, as requested by it. See Railway Co. v. Simpson, 41 Tex. Civ. App. 125, 91 S. W. 875; Railway v. Blake, 43 Tex. Civ. App. 180, 95 S. W. 593; Railway v. Randal, 48 Tex. Civ. App. 637, 108 S. W. 505.

It appearing that the case has been fully developed, it becomes our duty to reverse the judgment of the court below, and here render same in favor of appellant, which is accordingly done.

Reversed and rendered.  