48

road company is raised when animals are killed by railroad trains.* But this presumption cannot withstand positive evidence of ordinary diligence on the part of the company's employés. The statutory presumption is not overcome by testimony of the engineer that the animal came on the track on the fireman's side and that he did not have time to do anything to avoid striking it after he saw it, since the fireman may have discovered the animal in time to have averted the injury had he given the engineer prompt warning.49 The fact that an animal is found injured on a railroad right of way, and is afterward shot by an employé of the company, raises no presumption of law that it was injured by a train belonging to the company.50

§ 7675. Acquiescence in Use of Railroad Right of Way by Pedestrians.—The use by the public for more than twenty years of a footpath across the right of way of a railroad company, with the knowledge of the company and without objection on its part, will raise an inference that the company acquiesced in such use.51

§ 7676. Unnecessary Blowing of Locomotive Whistle Under Wagon Bridges.-A presumption of negligence arises from the blowing of a locomotive whistle loudly and repeatedly under a bridge constantly used by all kinds of vehicles.52

§ 7677. Proper Construction of Railroad Embankment.-It will be presumed in an action against a railroad company for damages caused

47 See Vol. II, § 2148. See also, Alabama Great Southern R. Co. v. McAlpine, 75 Ala. 113; East Tennessee &c. R. Co. v. Bayliss, 77 Ala. 429; South &c. R. Co. v. Bees, 82 Ala. 340; s. c. 2 South. Rep. 752; Jacksonville &c. R. Co. v. Garrison, 30 Fla. 557; s. c. 11 South. Rep. 926, 929; Alabama Midland R. Co. v. Gassett, 100 Ga. 85; s. c. 26 S. E. Rep. 83; 5 Am. & Eng. R. Cas. (N. S.) 607; Wright v. Minneapolis &c. R. Co., 12 N. D. 159; s. c. 96 N. W. Rep. 324; Mack v. South Bound R. Co., 52 S. C. 323; s. c. 40 L. R. A. 679; 3 Chic. L. J. Wkly. 272; 29 S. E. Rep. 905; Little Rock &c. R. Co. v. Wilson, 66 Ark. 414; s. c. 50 S. W. Rep. 995. The failure to ring the bell or sound the whistle, as required by the Missouri statute, upon the approach of a train to a public crossing, makes a prima facie case of liability upon the part of the company for the killing of stock at the crossing, but

such case may be rebutted by negativing a causal connection between the failure and the killing: Wasson v. McCook, 70 Mo. App. 393.

48 Seaboard &c. Railway v. Walthour, 117 Ga. 427; s. c. 43 S. E. Rep. 720; McGhee v. Guyn, 98 Ky. 209; s. c. 32 S. W. Rep. 615; 17 Ky. L. Rep. 794; Southern R. Co. v. Early, 105 Ga. 512; s. c. 12 Am. & Eng. R. Cas. (N. S.) 859; 31 S. E. Rep. 187.

49 Little Rock &c. R. Co. v. Chriscoe, 57 Ark. 192; s. c. 21 S. W. Rep. 431; St. Louis &c. R. Co. v. Russell, 64 Ark, 236; s. c. 41 S. W. Rep. 807.

50 St. Louis &c. R. Co. v. Parks, 60 Ark. 187; s. c. 61 Am. & Eng. R. Cas. 429; 29 S. W. Rep. 464.

51 Hansen v. Southern Pac. Co.,. 105 Cal. 379; s. c. 38 Pac. Rep. 957.

52 Mitchell v. Nashville &c. R. Co., 100 Tenn. 329; s. c. 45 S. W. Rep. 337; 40 L. R. A. 426; 10 Am. & Eng. R. Cas. (N. S.) 775.

by the alleged negligent, improper, and careless construction of an embankment causing an overflow of plaintiff's land, in the absence of evidence on the subject, that the embankment was, for railroad purposes, properly constructed.53

§ 7678. Fires Set Out by Locomotives.-Where it is proved that a fire was communicated by a locomotive, a presumption of negligence thereupon arises, and the burden is then shifted to defendant to overthrow such presumption by evidence that it used approved appliances or that the damage was from some extraordinary cause beyond its control. This presumption will be overcome by evidence that the engine was equipped with an improved spark arrester which was in good working order and that the engine was properly handled.55 It will not be regarded as rebutted by evidence that the engine had been repaired and had new netting put on, shortly before the fire, where such evidence shows that the engine was going down grade when the

fire was set, and that sparks will not be thrown when an engine is working light if the smoke stack is in good repair.56 The mere fact that the fire originated on a railroad right of way, or that the territory burned over was adjacent to the line of a railroad, does not raise a conclusive presumption that the fire was set out by the railroad company.58

§ 7679. Fires Set Out by Traction Engines.-The rule applicable to railroad locomotives that the escape of fire therefrom causing the destruction of property authorizes the jury to presume or infer negligence, has been held not to apply to a steam traction engine used to run a threshing machine.59

§ 7680. Injuries to Passengers.-On grounds presented elsewhere, there is a presumption of negligence on the part of a carrier of passengers which puts upon it the burden of showing that an injury to a passenger was sustained without any negligence on its part, when it is shown that the injury was caused by the act of the carrier ;61 and this is the case where the injuries are received as the result of an

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unexplained derailments or collision. Where, however, Where, however, as in Iowa, a statute makes it a misdemeanor to alight from a moving car without the consent of the conductor, one suing for injuries incurred while so alighting has the burden to prove the conductor's consent. A person riding in the conveyance of a common carrier palpably designed for the transportation of passengers will be presumed to be lawfully there and to occupy the relation of a passenger. But this rule will not apply in case of injuries to a person on a train manifestly designed for freight, even though a caboose is attached."

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66

§ 7681. Master's Knowledge of Dangers of Service. There is a presumption that an employer is familiar with the dangers ordinarily accompanying the business in which he is engaged."7

§ 7682. Competency and Habits of Fellow Servants.-The incompetency of an employé cannot be presumed from the fact of an accident in the course of his employment;68 and, on this point, it will be presumed, in the absence of evidence, that the master made proper inquiries as to the fitness of an employé before engaging him." The presumption that the master had used diligence in the employment of a competent fellow servant will not be overcome by evidence that sometime before the accident, the servant was not competent, unless the intervening time was so short that he could not have fitted himself for the duties of his employment. However, the master's knowledge of the intemperate habits of an engineer may be presumed from the fact that such knowledge was possessed by the foreman of the roundhouse

2 Webster v. Elmira &c. R. Co., 85 Hun (N. Y.) 167; s. c. 65 N. Y. St. Rep. 628; 32 N. Y. Supp. 590.

3 Copson v. New York &c. R. Co., 171 Mass. 233; s. c. 50 N. E. Rep. 613; Chicago City R. Co. v. McLaughlin, 40 Ill. App. 496; Smith v. St. Paul &c. R. Co., 32 Minn. 1; s. c. 50 Am. Rep. 550.

Raben v. Central &c. R. Co., 74 Iowa 732; s. c. 34 N. W. Rep. 621. See also, Young v. Chicago &c. R. Co., 100 Iowa 357; s. c. 69 N. W. Rep: 682; 6 Am. & Eng. R. Cas. (N. S.) 231.

Bryant v. Chicago &c. R. Co., 53 Fed. Rep. 997. See also, Creed v. Pennsylvania R. Co., 86 Pa. St. 139 (where it is held that the fact that the injured person was in a car in a mixed train not intended for the use of passengers did not raise a legal presumption of his negligence).

Atchison &c. R. Co. v. Headland, 18 Colo. 477; s. c. 20 L. R. A. 822; 33 Pac. Rep. 185.

67 Wagner v. Jayne Chemical Co., 147 Pa. St. 475; s. c. 1 Pa. Adv. Rep. 368; 11 Rail. & Corp. L. J. 212; 29 W. N. C. (Pa.) 490; 23 Atl. Rep. 772.

Mobile &c. R. Co. v. Godfrey, 155 Ill. 78; s. c. 39 N. E. Rep. 590; rev'g s. c. 52 Ill. App. 564.

Roblin v. Kansas City &c. R. Co., 119 Mo. 476; s. c. 24 S. W. Rep. 1011. See, generally, Sullivan v. New York &c. R. Co., 62 Conn. 209; s. c. 25 Atl. Rep. 711; St. Louis Pressed-Brick Co. v. Kenyon, 57 Ill. App. 640; Stafford v. Chicago &c. R. Co., 114 Ill. 244; Ohio &c. R. Co. v. Dunn, 138 Ind. 18; s. c. 36 N. E. Rep. 702; 37 N. E. Rep. 546; Piehl v. Albany R. Co., 19 App. Div. (N. Y.) 471; s. c. 46 N. Y. Supp. 257.

10 Baxley v. Satilla Man. Co., 114 Ga. 720; s. c 40 S. E. Rep. 730.

fire was set, and that sparks will not be thrown when an engine is working light if the smoke stack is in good repair.56 The mere fact that the fire originated on a railroad right of way, or that the territory burned over was adjacent to the line of a railroad, does not raise a conclusive presumption that the fire was set out by the railroad company.

§ 7679. Fires Set Out by Traction Engines.-The rule applicable to railroad locomotives that the escape of fire therefrom causing the destruction of property authorizes the jury to presume or infer negligence, has been held not to apply to a steam traction engine used to run a threshing machine."

§ 7680. Injuries to Passengers.-On grounds presented elsewhere, there is a presumption of negligence on the part of a carrier of passengers which puts upon it the burden of showing that an injury to a passenger was sustained without any negligence on its part, when it is shown that the injury was caused by the act of the carrier ; and this is the case where the injuries are received as the result of an

50 Coffman v. McCauslin, 70 Mo. Injury to a passenger as the result App. 34.