21 Kan. 622 | Ark. | 1879
The opinion of the court was delivered by
The agreed statement of facts brings this case within the decision of the Cent. Branch Rld. Co. v. Lea, 20 Kas. 353, if it appears therefrom that the defendant in error permitted his swine to run at large. This is the debatable question. Upon this point the statement shows that the hogs came upon the track and were killed, in Grant township, Reno county; that the voters of said township had never voted to exempt it from the operations of §46 of art. 7 of the act entitled “An act relating to stock,” approved March 20, 1868, (Gen. Stat. 1011;) that the board of county commissioners of said county, some months prior to the killing of the animals in question, directed by order that swine and certain other animals should not be allowed to run at large within the bounds of the county, pursuant to the law of 1872, (p. 384,) and that the order was in force in the county at the time of the alleged wrong complained of. While counsel for the defendant in error concedes that the animals were running at large, they claim that as the record is silentwhether the hogs were at large with the knowledge or permission of their owner, the presumption is that they were at large without fault or negligence on his part; in other words, that; to avoid the liability of the railroad company, it was incumbent on the company to show that the defendant was knowingly acting in disobedience to the commands of the statutes. And as the presumption is never made that a party violates the law, in the absence of proof that the defendant in error knew the hogs were running at large, it must be held he had no such knowledge. We think the argument of counsel faulty in this: while it is true that the guilt or wrong of a party is not presumed, and generally that a person is not required to prove a negative, yet when as in this case, it is shown or agreed that the hogs were running at large, while under the control and charge of the owner, it ,is presumed they were at large with his permission. It was his duty to see that the hogs were so secured as not to be at large. The proof that they were at large, changes the presumption, and throws upon the owner the burden of showing that they were at large without negligence or wrong on his part. Such evidence is peculiarly within his knowledge. The conclusion we reach is, that under the agreed statement of facts, the hogs killed were at large with the permission of the defendant in error, and that the case of Cent. Branch Rld. Co. v. Lea, supra, is applicable.
The judgment must be reversed, and the cause remanded with instructions to the district court to enter judgment on the facts stated, for the plaintiff in error.