Where it had been made to appear by the plaintiff's testimony that his horse had been injured on a railroad by the running of a train against, it, and it was left 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 prima facie case of negligence made by the act of 1856, ch. 7, was not repelled.
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 7, makes the mere fact of killing cattle or other live stock by the engine or cars of a railroad company prima facie evidence of negligence on the part of such company. Proof of having killed the plaintiff's horse, then, having been made, the 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 exemplified in S. v. Patton, 27 N.C. 180, and S. v. Goode, 32 (112) N.C. 49, decided under the law which made the examination of the mother of a bastard child prima facie evidence of its paternity. In the case before us, we think, for the reasons given by his Honor in the court below, that the prima facie case made by the plaintiff was not overthrown by the testimony given for the defendant. His Honor might, 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 were running. Of that, however, the facts stated do not enable us to give a definite opinion.
PER CURIAM. No error.
Cited: Battle v. R. R., 66 N.C. 344; Pippen v. R. R., 75 N.C. 58; Doggett v. R. R., 81 N.C. 466; Winslow v. R. R., 90 N.C. 74; Baker v. R. R., 133 N.C. 34.