Commentaries on the Law of Negligence in All Relations

in the Republic of Mexico, in which a loss by the negligence of a sleeping-car company occurred, for which suit is brought, although its laws are based on a system entirely different from those of Texas.2

§ 7655. Statutory Presumptions where Circumstances are Shown. —Generally, a statutory provision that proof of the injury shall be prima facie evidence of want of reasonable skill and care will not create a presumption of negligence against the defendant if the circumstances attending the accident are shown. The effect of such a statute "is to devolve upon the defendant the burden of proof of due care; it is not required to carry this burden with the presumption of negligence again added as a rider."3

§ 7656. Failure to Produce Testimony.-Generally, the omission of a party to call a witness who has knowledge of a fact in issue will create a presumption that the testimony if produced would be unfavorable. But evidence of a division street railroad superintendent that he could not ascertain anything in regard to an alleged accident has been held competent to rebut the presumption which the failure to produce the motorman and conductor of the car inflicting the injury might raise against the street railroad company in an action for injuries where the particular car was not identified. No presumption against a railroad company will be raised by its failure to prove the height of cars in a train from which an employé is alleged to have been knocked by collision with a bridge, where the plaintiff is as able to prove the composition of the train as the defendant."

§ 7657. Refusal to Furnish Information when Applied to.-A presumption of negligence may arise from the refusal of a party to fur

2 Stevenson V. Pullman PalaceCar Co. (Tex. Civ. App.), 26 S. W. Rep. 112.

3 Hamlin v. Yazoo &c. R. Co., 72 Miss. 39; s. c. 16 South. Rep. 877.

'Atlanta &c. R. Co. v. Holcombe, 88 Ga. 9; s. c. 13 S. E. Rep. 751; Pennsylvania R. Co. v. Anoka Nat. Bank, 108 Fed. Rep. 482; s. c. 47 C. C. A. 454; Reynolds v. Sweetser, 15 Gray (Mass.) 78; Whitney v. Bayley, 4 Allen (Mass.) 173; Baldwin V. Whitcomb, 71 Mo. 651; Bruce v. Kelly, 7 Jones & S. (N. Y.) 27; Wennerstrom v. Kelly, 7 Misc. (N. Y.) 173; s. c. 27 N. Y. Supp. 326; Wimer v. Smith, 22 Or. 469; s. c. 30 Pac. Rep. 416; Murray v. South Carolina R. Co., 10 Rich. L.

(S. C.) 227; s. c. 70 Am. Dec. 219; Union Trust Co. v. McClellan, 40 W. Va. 405; s. c. 21 S. E. Rep. 1025; Weatherford &c. R. Co. v. Duncan, 88 Tex. 611; s. c. 32 S. W. Rep. 878 (party may show that absent witnesses subpoenaed by him were in the employ of the opposite party). Contra, see Cross v. Lake Shore &c. R. Co., 69 Mich. 363; s. c. 37 N. W. Rep. 361; 13 Am. St. Rep. 399; Bleecker v. Johnston, 69 N. Y. 309; Maus v. Broderick, 51 La. An. 1153; s. c. 25 South. Rep. 977.

Hope v. West Chicago St. R. Co., 82 Ill. App. 311.

Donald v. Chicago &c. R. Co., 93 Iowa 284; s. c. 33 L. R. A. 492; 61 N. W. Rep. 971.

nish information as to the cause of the injury. Thus, where a railroad company, when applied to, gave no information to account for an injury to the plaintiff's goods, except that they were broken by another railroad while switching, it was held that the negligence of the former might be inferred. So, in an action against a carrier for injuries to goods by fire in transit, where it appeared that the bill of lading provided that unless the agents were guilty of gross negligence the company was not responsible for injuries "from fire," and that the company had refused to give the plaintiff any information as to how and where the fire occurred,-it was held that this conduct raised a presumption of negligence not ipso facto repelled by evidence that the defendant used ordinary care, and the question of negligence was for the jury.8

§ 7658. Fact that No Previous Accidents have Occurred.-In cases where there is proof of improper construction, a presumption that the owner of premises was free from negligence will not arise from the mere fact that no previous accidents had occurred.

§ 7659. Ownership of Thing Causing the Injury.-There is a presumption that a railroad company operates a railroad which it owns and which bears the name of the company,10 and that an engine operated over the tracks of a railroad company belongs to the company and is being operated by it. In like manner, evidence that the truck which struck the plaintiff bore the name of the defendants' firm has been held to make out a prima facie case that the truck belonged to them and the driver in charge of it was their servant where they failed to deny ownership.12 So, evidence was held to make out a prima facie case which showed that at the time of the accident, the wagon colliding with the plaintiff bore the firm name of the defendants on a canvas strip along its sides and was precisely like others which on the day in question were loaded at their store, and it was undisputed that it was loaded with their goods for delivery to their customers; and

Pennsylvania R. Co. v. Miller, 87 Pa. St. 395.

Merwin v. Manhattan R. Co., 48
Hun (N. Y.) 608; s. c. 16 N. Y. St.
Rep. 20.

10 Ferguson v. Wisconsin &c. R. Co., 63 Wis. 145.

11 Brooks v. Missouri Pac. R. Co., 98 Mo. App. 166; s. c. 71 S. W. Rep. 1083.

Grifhahn v. Kreizer, 171 N. Y. 661; s. c. 64 N. E. Rep. 1121; Wood v. Third Ave. R. Co., 157 N. Y. 677; S. c. 51 N. E. Rep. 1094. See also, Wormsdoff v. Detroit City R. Co., 12 Doherty v. Lord, 8 Misc. (N. 75 Mich. 472; s. c. 42 N. W. Rep. Y.) 227; s. c. 28 N. Y. Supp. 720; 1000; Weiler v. Manhattan R. Co.,

53 Hun (N. Y.) 372; s. c. 25 N. Y. St. Rep. 543; 6 N. Y. Supp. 320;

59 N. Y. St. Rep. 445; aff'g s. c. 55 N. Y. St. Rep. 160; 25 N. Y. Supp. 752.

§ 7655. Statutory Presumptions where Circumstances are Shown. -Generally, a statutory provision that proof of the injury shall be prima facie evidence of want of reasonable skill and care will not create a presumption of negligence against the defendant if the circumstances attending the accident are shown. The effect of such a statute "is to devolve upon the defendant the burden of proof of due care; it is not required to carry this burden with the presumption of negligence again added as a rider."3

§ 7656. Failure to Produce Testimony. Generally, the omission of a party to call a witness who has knowledge of a fact in issue will create a presumption that the testimony if produced would be unfavorable. But evidence of a division street railroad superintendent that he could not ascertain anything in regard to an alleged accident has been held competent to rebut the presumption which the failure to produce the motorman and conductor of the car inflicting the injury might raise against the street railroad company in an action for injuries where the particular car was not identified. No presumption against a railroad company will be raised by its failure to prove the height of cars in a train from which an employé is alleged to have been knocked by collision with a bridge, where the plaintiff is as able to prove the composition of the train as the defendant."

§ 7657. Refusal to Furnish Information when Applied to.-A presumption of negligence may arise from the refusal of a party to fur

2 Stevenson V. Pullman PalaceCar Co. (Tex. Civ. App.), 26 S. W. Rep. 112.

3 Hamlin v. Yazoo &c. R. Co., 72 Miss. 39; s. c. 16 South. Rep. 877.

Atlanta &c. R. Co. v. Holcombe, 88 Ga. 9; s. c. 13 S. E. Rep. 751; Pennsylvania R. Co. v. Anoka Nat. Bank, 108 Fed. Rep. 482; s. c. 47 C. C. A. 454; Reynolds v. Sweetser, 15 Gray (Mass.) 78; Whitney v. Bayley, 4 Allen (Mass.) 173; Baldwin V. Whitcomb, 71 Mo. 651; Bruce v. Kelly, 7 Jones & S. (N. Y.) 27; Wennerstrom v. Kelly, 7 Misc. (N. Y.) 173; s. c. 27 N. Y. Supp. 326; Wimer v. Smith, 22 Or. 469; s. c. 30 Pac. Rep. 416; Murray v. South Carolina R. Co., 10 Rich. L.

Hope v. West Chicago St. R. Co., 82 Ill. App. 311.

Donald v. Chicago &c. R. Co., 93 Iowa 284; s. c. 33 L. R. A. 492; 61 N. W. Rep. 971.

nish information as to the cause of the injury. Thus, where a railroad company, when applied to, gave no information to account for an injury to the plaintiff's goods, except that they were broken by another railroad while switching, it was held that the negligence of the former might be inferred." So, in an action against a carrier for injuries to goods by fire in transit, where it appeared that the bill of lading provided that unless the agents were guilty of gross negligence the company was not responsible for injuries "from fire," and that the company had refused to give the plaintiff any information as to how and where the fire occurred,—it was held that this conduct raised a presumption of negligence not ipso facto repelled by evidence that the defendant used ordinary care, and the question of negligence was for the jury.8

§ 7659. Ownership of Thing Causing the Injury.-There is a presumption that a railroad company operates a railroad which it owns and which bears the name of the company,10 and that an engine operated over the tracks of a railroad company belongs to the company and is being operated by it." In like manner, evidence that the truck which struck the plaintiff bore the name of the defendants' firm has been held to make out a prima facie case that the truck belonged to them and the driver in charge of it was their servant where they failed to deny ownership.12 So, evidence was held to make out a prima facie case which showed that at the time of the accident, the wagon colliding with the plaintiff bore the firm name of the defendants on a canvas strip along its sides and was precisely like others which on the day in question were loaded at their store, and it was undisputed that it was loaded with their goods for delivery to their customers; and

'Kirst v. Milwaukee &c. R. Co., Merwin v. Manhattan R. Co., 48 46 Wis. 489. Hun (N. Y.) 608; s. c. 16 N. Y. St.

Pennsylvania R. Co. v. Miller, Rep. 20. 87 Pa. St. 395.

'Grifhahn v. Kreizer, 171 N. Y. 661; s. c. 64 N. E. Rep. 1121; Wood v. Third Ave. R. Co., 157 N. Y. 677; s. c. 51 N. E. Rep. 1094. See also, Wormsdoff v. Detroit City R. Co., 75 Mich. 472; s. c. 42 N. W. Rep. 1000; Weiler v. Manhattan R. Co., 53 Hun (N. Y.) 372; s. c. 25 N. Y. St. Rep. 543; 6 N. Y. Supp. 320;

10 Ferguson v. Wisconsin &c. R. Co., 63 Wis. 145.

" Brooks v. Missouri Pac. R. Co., 98 Mo. App. 166; s. c. 71 S. W. Rep. 1083.

12 Doherty v. Lord, 8 Misc. (N. Y.) 227; s. c. 28 N. Y. Supp. 720; 59 N. Y. St. Rep. 445; aff'g s. c. 55 N. Y. St. Rep. 160; 25 N. Y. Supp. 752.

such a prima facie case was not rebutted by the simple affirmation of one of the defendants that they had hired the driver and outfit from some unnamed and undisclosed stranger.13

§ 7660. Capacity of Child to Appreciate Danger.-The degree of care and prudence which must be exercised by a child to avoid the imputation of negligence is measured by his capacity to see and appreciate danger, whether he is under or over fourteen years of age; and in the absence of evidence to the contrary, such capacity will be held to be that which is usual to children of his age and experience. Fourteen years is simply the age after which capacity is presumed, and the burden of showing lack of it placed on the child. Evidence that a child injured by a railroad train at a public crossing was a little child and of an age to be led by the hand, raises a presumption in the absence of evidence as to her age that she was non sui juris.15

§ 7661. That Public Work was Authorized.—There is a presumption that the prosecution of a work by a corporation in the public streets is authorized and that its employés are not trespassers.'

§ 7662. Safety of Streets and Highways.-Persons travelling on the streets of a city which are in constant use by the public, without knowledge of defects therein, have the right to presume and to act upon the presumption that such streets are sufficiently safe for ordinary travel throughout their entire width.17

§ 7663. Failure to Construct Sidewalk as Required by Ordinance. -Failure of a city to construct a walk in the manner required by an ordinance, though not conclusive that the walk was improperly constructed, is an element to be considered on that question.18

13 Baldwin v. Abraham, 57 App. Div. (N. Y.) 67; s. c. 67 N. Y. Supp. 1079.

14 McDonald v. Metropolitan St. R. Co., 80 App. Div. (N. Y.) 233; s. c. 80 N. Y. Supp. 577; Kehler v. Schwenk, 144 Pa. St. 348; s. c. 13 L. R. A. 374; 48 Phila. Leg. Int. 539; 22 Atl. Rep. 910. See also, Central R. &c. Co. v. Rylee, 87 Ga. 491; s. c. 13 L. R. A. 634; 13 S. E. Rep. 584. The court will not assume that a boy over fourteen years of age, with six months' experience in a machine shop, is incapable of forming a judgment of the danger of putting a belt upon a machine

while the shaft is running,-especially when he is warned by an older and more experienced person: Greenway v. Conroy, 160 Pa. St. 185; s. c. 34 W. N. C. (Pa.) 98; 28 Atl. Rep. 692.

15 Wiley v. Long Island R. Co., 76 Hun (N. Y.) 29; s. c. 59 N. Y. St. Rep. 157; 27 N. Y. Supp. 722.

16 Daum v. North Jersey St. R. Co., 69 N. J. L. 1; s. c. 54 Atl. Rep. 221.

Spring Valley v. Gavin, 81 Ill. App. 456

18 Smith v. Pella, 86 Iowa 236; s. c. 53 N. W. Rep. 226.

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Commentaries on the Law of Negligence in All Relations: (including a ...