WALKER v. RAILROAD

James A. Edgerly (with whom was J. S. H. Frink), for the defendants. The nonsuit should have been ordered. In order to maintain his case, the plaintiff must affirmatively establish three propositions: First, that at the time and place of the accident he was in the exercise of due care. Second, that the defendant corporation was negligent. Third, that the plaintiff's injury was caused by such negligence. There is no evidence here of negligence on the part of the defendant corporation. The mere sounding of the whistle cannot be deemed negligence, although blown in close proximity to the highway, and even though there are horses in the immediate vicinity. Billman v. Indianapolis, Cincinnati Lafayette Railroad, 76 Ind. 166. The evidence does not show that the sounding of the whistle was unnecessary or improper, and it is therefore presumed there was lawful occasion for it. Culp v. Atchison Nebraska Railroad Co., 17 Kan. 475. The mere fact of whistling furnishes no presumption of negligence. Phila. R. R. Co. v. Stinger, 78 Penn. St. 219. "A railroad has the right to do lawful acts upon its own premises, and is not responsible for injurious consequences that may arise from such acts, unless the acts are negligently and improperly done." Favor v. Boston Lowell R. R. Corp., 114 Mass. 350. If the blowing of the whistle was not per se negligent, that is, was negligent, or not, depending on whether there was a necessity for doing it, manifestly before an inference of negligence can arise from the mere doing of the act, it is incumbent on the party having the burden of the issue to show that the act was done under such circumstances as made it at that time negligent. When the evidence is silent as to a fact, the existence of which is necessary to make out the plaintiff's case, the presumption is that such fact did not exist. To sustain the plaintiff's case, it was incumbent on him to prove that the defendant corporation was guilty of negligence. The evidence in this case shew nothing more than that the defendants did that for which, under some circumstances, the law imposes a penalty against its servants if the act which was done is omitted, besides making the company liable for all damages which result from its omission. Henry D. Yeaton (with whom were J. C. Caverly and Marston Eastman), for the plaintiff.