
    
      A. R. Danner vs. The South Carolina Rail Road Company.
    
    In an action on the case against a Rail Road Company, to recover damages for the loss of cattle of the plaintiff, killed by the engine and cars of the Company, in their -passage along the road, a negligent killing must be shewn. If the proof shews that the killing was wilful on the part of the engineer, or that it was entirely accidental, the action will not lie.
    
      To excuse the Company on the ground that the killing was accidental, it is not enough to shew that it was not intentional: it must be shewn to have occurred unavoidably, and without the least fault on the .part of the engineer.
    When, in such an action, the plaintiff proves no more than that his cattle, pasturing on his own land, were killed by the passenger train of the Company, in its passage along the road, and the value of the cattle, he makes out'a. prima fads case of negligence, which entitles him to recover, unless the Company, by proof of the particular manner or circumstances under which the cattle were killed, rebut the presumption of negligence.
    
      Before Frost, J., at Charleston, October Term, 1850.
    The report of his Honor, the presiding Judge, is as follows:
    “By the request of both parties, they were permitted to take a verdict in this case, out of its order on the docket, that the principle involved, important to the Company and to the community, might be adjudicated in the Court of Appeals. It was submitted to the decision of the Circuit Court, without argument or time for consideration, in the press of business, at the close of the term.
    “The plaintiff’s case, as stated in his own affidavit, which was admitted to be evidence, is, that between the first day of November, 1849, and the fifth day of October, 1850, the engines and cars of the passenger trains, belonging to the Company, had run over and killed, of the plaintiff’s cattle, four milch cows, of the value of $95; one steer, of the value of $15; and two heifers, of the value of $20 — amounting, in all, to $130. In each case of killing, neighbors were summoned, who appraised the cattle at the sums stated. In so doing, the plaintiff pursued the published notice of the Company, that, in all cases of cattle killed, the carpenter of the Company and two neighbors should be summoned to appraise the value. In only one of the cases stated could the carpenter be obtained; and then he concurred in the valuation. The Rail Road passes within 150 yards of the door of the plaintiff’s dwelling-house, and the passenger trains pass along his tract of land at the rate of about twenty-five miles an hour. The Company have no fence or enclosure to keep the plaintiff’s cattle from straying on the road. One of the cows was killed by the Ridge-ville train, which had no break to stop it; which cow was valued at #25. The part of the road on which the cattle were killed is perfectly straight for two or three miles. The engineers on the road are required by the Company to bear the loss of all cattle killed.
    “For the defence, John Chalk, an engineer, and John E. Marley, a conductor on the road, by their several affidavits, set out the danger of destruction to cattle from the speed of the trains, and the impossibility of arresting their progress suddenly. With the use of the breaks, and of every other appliance, the train, in full speed, cannot be stopped in a distance less than two to five hundred yards. They represent the dangers to be increased by the fright and insensibility to danger of the cattle, which frequently prompt them to rush before the train, under circumstances which no care or vigilance can avoid or prevent proving fatal. From the circumstances detailed by them, they express the opinion ‘that the destruction of cattle upon the road is never to be attributed to negligence or carelessness.’
    “The liability of the Company for the cow killed by the Ridge-ville train was admitted.
    “While .it is admitted, by the case submitted, that the rest of the plaintiff’s cattle were destroyed by the passenger trains of the Company, there is no evidence whatever of the circumstances or manner in which they were destroyed. It cannot be assumed, from the facts and opinions stated by the witnesses for the de-fence, that the destruction of cattle by the Rail Road trains can never be the result of negligence, since negligence is confessed in the killing of the plaintiff’s cow by the Ridgeville train. Because, in many cases, the destruction of cattle by the trains is inevitable, that does not warrant the assumption that in all cases it is so. The engineers, conductors and agents of the Rail Road cannot be exempt, by virtue of their employment, from the imputation of negligence, to which otherwise, in common with all persons, sui juris, they would be subject. The case made by the evidence is not such as can protect the defendants from liability. It is therefore contended for the defence that when it is admitted cattle have been killed by direct and immediate force, and the particular circumstances of the killing are not disclosed, it is a presumption of law that the servants of the Company have not been guilty of any negligence in' the conduct of the train; and that this presumption shall prevail until the contrary be proved by the party complaining. But it was held otherwise. Because, as a general rule, if it be admitted or proved that one person has sustained damage by the immediate act of another, the person doing the injury is bound to shew matter of excuse' or justification. That the damage was done in the pursuit of a lawful employment, does not except the case from the general rule. The law does not exempt'any employment from imputation of negligence, In the pursuit of a lawful trade or employment, wrongful injuries • may be done to the property of another, by want of skill and care, or wilfully. If the circumstances, under which an admitted destruction of property has occurred, be not shewn, it cannot appear that it was not done maliciously or negligently. In such case it is an unreasonable claim to protection that the complaint of the sufferer should be dismissed, on the presumption that the servants of the Company can do no wrong. To allow such a presumption, would give to them a dangerous license. They have the train under their conduct and control. They alone are witnesses of the damage they may do. The passengers are not in a situation to see under what circumstances it occurs. The party injured would have a poor chance for redress when the only witnesses who can maintain his action must charge themselves by any testimony they may give in support of his claim. The Company can, more readily than the plaintiff, procure the attendance of their servants, as witnesses, and can remove the exception to their competency and credibility by a release, which the plaintiff cannot do. The regulation of the Company, which charges the engineers with the value of eatlle that may be killed, could not have been adopted or tolerated if it were not true that at least most frequently such destruction is caused by culpable want of care; and can be prevented if it be made the interest of the engineer that it should not occur. The killing of cattle is not, like the escape of sparks from the smoke-stock, or of coals from the furnace, a necessary incident to the employment of a steam locomotive. When it was admitted that the plaintiff’s cattle were killed by the passenger train, it was held to- be incumbent on the Company to repel the plaintiff’s claim for compensation, by shewing the circumstances under which the damage was done.
    “A verdict was rendered for the plaintiff, for the amount of his loss.”
    The Company appealed and now moved for a new trial, on the following grounds:
    1st. The Court, it is respectfully submitted, should have instructed the jury, that, this being an action on the case for injury done by carelessness, the plaintiff, to entitle himself to recover, must either shew some carelessness on the part of defendants, or lay facts before the jury, from which carelessness might be inferred. The jury should have been made to understand that the onus did not lie. on the defendants to disprove negligence, but on the plaintiff to establish it.
    2d. Because the whole spirit and tenor of the charge of the Court, is the reverse,of the above, to wit: that the onus of disproving negligence lay upon the defendants.
    3d. Because “there being no evidence whatever of the circumstances or manner in which the cattle were destroyed,” as stated by the Court, the plaintiff was not entitled to a verdict!
    4th. Because, the Bail Road Company being authorized by Act of the Legislature to run locomotive engines and cars, are not responsible for the damage which ensues from the ordinary use of said engines and cars, according to the purposes of the charter. To show an accident which may have occurred either with carelessness or without, was not enough, even for a prima facie case. The plaintiff should have proved affirmatively that defendants were in some way in default, and his Honor should have so instructed the jury.
    Sth. Because the cars of the Company had, under the laws of the land, quite as much right to be on the Rail Road track as the plaintiff’s cows, and the principle that one should so use his own property as not to injure his neighbor, applies to the owner of the cows quite as much as to the Rail Road Company. Cows on the track endanger the lives of passengers and engineers, and subject the property of the Company to a risk of injury infinitely beyond their own value, whenever they are destroyed.
    
      Hayne, for the motion.
    •-, contra.
   Curia, per

Frost, J.

The report presents the facts of a case made and submitted in the Circuit Court. On it, the opinion' of the Court was taken, whether the evidence was sufficient to maintain the action, and support a verdict for the plaintiff. If, in the judgment of the Court, it was not sufficient, a non-suit should be entered; otherwise a verdict should be taken for the plaintiff.

One of the points presented by the grounds of appeal is, whether when it was proved that the cattle of the plaintiffs, pasturing on his own land, were killed by the passenger train of the Company, in its progress along the track of the road, and the particular circumstances of the destruction were not disclosed, the jury might infer negligence from these facts.

The damage to the plaintiff resulted from the killing of his cattle by immediate force. If trespass were brought against the engineer, on the evidence submitted in this case, the plaintiff would be entitled to a verdict for his damages, unless the defendant showed matter, in excuse or justification. If trespass were brought against a drayman, for driving against and killing the plaintiff’s horse, on proof that the defendant did kill the plaintiff’s horse, as alleged, without any further evidence of the circumstances or manner of the killing, that would be sufficient for the recovery of damages. The onus would be thrown on the defendant to discharge himself of liability. It would be no de-fence that the defendant was shewn to have been in the pursuit of a lawful employment, and was lawfully driving his dray, in a public street, and that the act was not wilful. Leame vs. Bray (3 East, 593.) Every act must be either wilful, or negligent, or accidental. In trespass the plaintiff may recover, if the injurious act is either wilful or negligent. The defendant is excused, if it is wholly accidental. Proof of the act, and of the injury* resulting from it, is prima facie evidence that the act was done wilfully or negligently. If the defendant alleges in his defence that the injury was accidental, he must prove it.

But this is an action on the case against the Company, to recover damages caused by the negligence of their engineer. If théy engineer drove over the cattle wilfully, the Company is not lia? ble. To maintain his action, the plaintiff must therefore shew, that the cattle were killed by .the negligence of the engineer. Both plaintiff and defendant admit that the case does not shew wilful injury. The only enquiry for the jury was, did the injury result from negligence or accident ? If not accidental, it must have been negligent.

In an action of trespass against the engineer, the facts stated would be prima facie evidence, that the injury was wilful or negligent. No inference or presumption of law would arise, that the injury was accidental, which the plaintiff would be required to rebut by evidence of the particular circumstances of the injury. In an action on the case, the same facts must equally' shew a prima facie case of negligence, to the exclusion of any inference or presumption of law that it was accidental; unless, indeed, the same facts can admit of inconsistent inferences or presumptions of law, when produced in evidence in different forms of action. Then the facts stated, which shew damageN from immediate force, are, prima facie, sufficient to maintain the plaintiff’s action; and if the defendant rests his defence on the ground, that the injury was accidental, he must shew it by evidence of (he circumstances and manner of the injury.

To maintain the defence that a forcible injury is accidental, ibis not enough to shew that it was not intentional, but it must appear to have occurred unavoidably, and without the least fault imputable to the person who does the injury. Jennings vs. Funderburg (4 McC. 161) was an action of trespass for shooting the plaintiff’s slave. The case was proved by the admission of the defendant; he said that he had surprised the slave in a camp of runaways, and had fired his gun over their heads, so as not to take effect on them, and that the plaintiff’s slave was killed by a random shot, which had been turned out of its direction. It was held that it was not sufficient to excuse the defendant,that the act was unintentional; that the pursuit of the runaway slaves was lawful and laudable, and the firing of the gun, merely to intimidate them, was innocent; but the defendant should have reflected how easily a ball may be glanced from its direction, and that the trespass could not be excused as accidental, because the killing of the slave was not wholly without fault. If the defendant pleads, specially, that the injury was the result of accident, he must set out the case, with all its circumstances, so that it shall appear to the Court that the injury was inevitable, and that the defendant had committed no negligence to give occasion to the hurt; for no man shall be excused of a trespass, except it may be judged utterly without his fault. Weaver vs. Ward (Hob. 134.)

Negligence cannot be defined by any rules of evidence; it must be inferred from all the facts of the case. It may sometimes be doubtful whether an injurious act was negligent or accidental. In such cases the jury only can decide, bearing in mind that it is not incumbent on the plaintiff to negative accident, but on the defendant to prove it.

In an action of assumpsit by a passenger, against the proprietor of a coach for negligence, whereby the plaintiff was thrown off the coach and injured, it was held that the plaintiff made a prima facie case of negligence, when he proved the accident and the damage he suffered. It might be impossible to give any other evidence of negligence. The defendant has the means to repel this presumption, if it be unfounded, and it is incumbent on him to make out that the damage resulted from accident. Christie vs. Griggs (2 Cam. 79.) In Pigot vs. the Eastern Counties Railway Company, (54 Eng. C. L. R. 228,) it was adjudged that the fact, that the premises were fired by sparks from a passing engine, is prima facie evidence of negligence on the part of the Company, rendering it incumbent on them to shew that some precautions had been adopted by them, reasonably sufficient to prevent such accident. Aldridge vs. the Great Western Railway Company, (42 Eng. C. L. R. 273,) was a case stated under the statute 3 & 4 William IV. The facts submitted were, that a stack of beans in the plaintiff’s held, near the track of the road, was fired and destroyed by sparks from an engine, in its passage along the road, and past the plaintiff’s field. The engine was such as were ordinarily used on Rail Roads ; and, at the time the injury was done, was used in the ordinary manner and for the purposes authorized by the Act of Parliament, incorporating the Company. It was adjudged by the whole Court that the plaintiff could not be nonsuited, but that the case was proper for the decision of a jury. It was admitted that the plaintiff should shew some carelessness, or lay facts before the jury, from which negligence might be inferred ; but it was the opinion of the Court that, from the facts stated, the jury might infer negligence. In Simpson vs. the Portsmouth & Roanoke Rail Road Company, (2 Iredell, 140) proof that the. defendant’s fence was destroyed by sparks from the Company’s engine, was held sufficient to go to the jury, and from the fact of damage to the plaintiff, by the sparks, negligence might be inferred.

It must be assumed, by the terms of the case submitted, that the verdict was rendered by the jury after consideration of the evidence. Is there sufficient ground to set it aside ? That the Company did not produce witnesses to shew how the damage occurred, nor explain why they omitted to do so, tends to induce the belief that they could make no defence. They had the witnesses under their control. The plaintiff may not have been present when his cattle were killed, and may not be able to discover who were the persons employed on the train when the damage was done. When a party is charged with an act or declaration, which may subject him to an action, and does not deny it, his silence is construed into an admission. The same construction may be put on a party’s omission to offer testimony in his defence, when it is in his power to produce the witnesses who might exculpate him.

The frequent repetition of injury, under similar circumstances, creates a presumption of negligence. In less than a twelvemonth, seven head of the plaintiff’s cattle were successively destroyed. The rule of the Company, charging the engineer with the value of cattle destroyed, is an admission, by the Company and its engineers, that in many cases, at least, the destruction may be avoided by care.

It would give dangerous license and indemnity to the destruction of cattle, if the Company and its engineers were protected by a presumption of law, that the destruction is inevitable, and the onus were thrown on the plaintiff to repel this presumption by evidence of the particular manner and circumstances in which the cattle were destroyed. The owner can seldom know who may be the persons in charge of the train when an injury is done, and if he does discover them, they cannot maintain his claim without charging themselves with a liability to pay it.

The motion is refused.

O’Neall, Evans, Wardlaw and Whitner, JJ., concurred.

Motion refused.  