
    WILLIAM CLARK v. WESTERN N. C. RAIL ROAD.
    Where It had been made to appear by the plaintiff’s testimony, that his horse' had been injured on a rail-road by the running- of a train against it, and it ■ was loft doubtful from defendant’s testimony, whether the brakes had been: applied to the wheels of the train after the-animal was discovered to be on. track, it was held that the prime* fade case of negligence made by the act of 18C6, chap. 7, 'was not -repelled..
    ActioN ON tee case for negligence-, tried before- KeeR, J.,. at the Eall Term, 1862;. of Iredell Superior Court.
    The plaintiff claimed' damages for injury done te-his horses-by defendant’s agent’s- negligently running the train of the-the rail-road against them. «
    
      Christopher Olarli testified, that in November, 1860, whent the train was passing- near the residence of the witness, he-saw a mule of the plaintiff passing.-over the track of the road,, and at. the time he heard the station whistle, and in a short time he heard the alarav-whistle used to scare off stock.; that the plaintiff’s horses, which were injured, were on the side of” tire road opposite to that from which the- mule came, and. came upon- the track the alarm whistle continued: to blow,, and the horses started off. on- the track and ran away from, the approaching train until they readied a cattle guard-' where-they were overtaken and, struck by the engine — that the train was stopped about thirty cr forty yards beyond the cattle-guard. lie stated that the train: was- running at a moderate rate of speed when the-mule crossed- and that the signal whistle for putting on the brakes- was not sounded. He further stated, that the grade of the road: was such at this point, as-admitted of the train’s- being stopped quite readily, if proper effort had been made to do so ; that he- had known it stopped suddenly on the same ground,, some time before that, to-prevent a collision; that the train was 212. yards from where-the horses were overtaken when-the station-whistle was blown.. Another witness,, for the plaintiff,, testified, substantially to the-same facts.
    
      The defendant introduced one Roberts, the engineer in eharge of the engine when the alleged injury was inflicted.— He stated that while moving around a heavy curve in the road, at the rate of twenty miles an hour, which -was the schedule rate, he saw before him at a distance of about fifty yards, the plaintiff’s horses on the track; that he was then in his proper position on the right of the engine ; that the road curved to the loft at this point, and- his position on the right of the engine was unfavorable for seeing far ahead on account of the smoke stack and the lamp which obstructed his view ; that as soon as he saw the horses he immediately blew the whistle for the bralce a/nd reversed the engine, and he also blew the alarm whistle for driving off stock ; that before he could get {he engine stopped it struck the horses ; that the train continued running for thirty or forty yards before he could stop it. He further stated, that he was running upon a heavy down grade with five cars attached ; that he did all in his power to stop the train, and that under the circumstances, it was impossible for him to have done so sooner than he did.
    Another witness by the name of Oox, who was also an engineer, stated that he was on the train at the time, near the engineer, and, he gave substantially the same statement with Roberts.
    The plaintiff then re-called his witness, Qla/rh, and offered to prove by him that he, plaintiff, in company with witness, had an interview with Doctor Powell, president of the railroad company, soon after the injury was done, and upon plaintiff’s representation of the extent of the injury and the manner of its occurrence, Dr. Powell advised him to kill one of the horses and then to have both of them valued by two freeholders, and if one of the horses should get well to have them valued again in like manner, which was done accordingly. This evidence was objected to by the defendant, but admitted by the Court. Defendant excepted. The action was commenced within six months after the injury sustained.
    The Court charged the jury, that by the act of 1856, after the injury was satisfactorily shown by the plaintiff, it devolved upon tbe defendant to prove that it did not result from the negligence of the defendants’ agente ; that in law the defendants were required to show that every thing liad been done which, under the circumstances, it was possible to do to prevent the injury ; that in the opinion of the Court the brake ought to have been applied to aid in stopping the train when it was discovered that the horses were on the track ; that there was no evidence that the brakes were so applied, the testimony being only that the whistle was blown as a signal for tho brakes to be put on, and that the want of such proof left the presumption of negligence still standing against the defendant.
    The defendant’s counsel asked the Court to instruct the jury, that they had a right to infer that the brakes were applied from the testimony of Eoberts and Cox.
    This the Court refused- to do, but stated to the jury, that notwithstanding what Eoberts and Cox had testified, the plaintiff was entitled to recover. Defendant excepted to the charge. Verdict for the plaintiff.. Judgment and appeal by the defendant.
    
      Miiehdl and Boy den, for the plaintiff.
    Moore, for the defendant.
   Battle, J.

"We are unable to discover any error in the charge-of his Honor, of which the defendant can complain. The' act of 1856, chapter T, makes the mere fact of killing cattle or other live stock by the engine or cars of a rail-road jprima facie evidence of negligence on the part of such company. Proof of having killed-the plaintiff’s horse, then, having been made, tbe force of that law is to declare that the company’s agents were guilty of negligence of which they could not acquit themselves, except by showing that there was no neglect whatever. It is not sufficient for them to prove that there was probably no negligence. They are put 'by the law under the heavy burden of proving affirmatively, a negative. The difficulty of such a position is strongly ex* emplified by the cases of State v. Patton, 5 Ired. 180, and State v. Goode, 10 Ired. 49, decided uuder the law which made the examination of the mother of a bastard child, prima facie evidence of its paternity. In the ease before us, wo think, for the reasons given by his Honor in the Court below, that the]>rima fade case, made by the plaintiff, was not overthrown by the testimony given, for the defendant. IIis Hon- or might, perhaps, have goub further and stated that the engineer, himself, liad shown some neglect by not having placed himself in such a position that he could see along the curve■ of the road, around which the cars wore running. Of that, however, the facts stated do not enable ns to give & definite opinion.

Pku CukiaM;. Judgment affirmed,,.  