68 Ark. 284 | Ark. | 1900
(after stating the facts.) The defendant offered to prove on the trial that the cotton was being withheld by him from being ginned at the instance and request of Gray, one of the appellees, at the time it was stolen, and at the time of the burning of the gin; and this was not allowed by the court, to which he excepted, and made this the first ground of his motion for a new trial. Appellant contends this should have been allowed, because the appellees requested that the ginning should be delayed until they could gather a certain field of cotton, that it might all be ginned at the same time; that, having withheld the ginning thus’ at the request and for the accommodation of appellees, a less degree of care was required of him to keep the cotton safely. While we would not reverse the ease for failure to allow this testimony, we think it should have been allowed, that the jury might be in possession of all the facts that might bear upon the case.
There was prejudicial error in the court’s instruction to the jury as to the burden of proof. It told the jury that, “the loss of the cotton being admitted, the burden is upon the defendant to show that such loss was not caused by the negligence of him or his servants; and, unless you find by a preponderance of the evidence that the loss .was not caused by such negligence, your verdict will be for the plaintiff.” This is error, for which the judgment must be reversed. Judge Story in his work on Bailments (8th Ed.), § 410, says: ‘With certain exceptions, which will thereafter be taken notice of, as to innkeepers and common carriers, it would seem that the burden of the proof of negligence is on the bailor, and proof merely of the loss is not sufficient to put the bailee on his defence. This has been ruled in a case against a depositary for hire, where the goods bailed were stolen by his servant.” “Properly understood, it seems to be clear that the burden of proof must always be upon the plaintiff to make out all the facts upon which his case rests; and,as negligence is the foundation of the action between bailor and bailee, that the duty of proving such negligence is on the former, rather than that of disproving it on the latter. That the burden is on the plaintiff in other cases founded on negligence is now quite generally agreed. * * * Negligence is no more to be presumed in such cases than in any other.” There is some discrepancy in the cases, but “the best considered modern authorities, in which the question has been most directly discussed and decided, support the views above expressed.” Id. §§ 410a, 213, 278, 339, 454 and authorities, note 3 and 4.
“All bailees, with or without a special contract, are prima facie excused when they show loss or injury by act of God, or of public enemies; and ordinary bailees in a variety of lesser instances', such as fire, loss by mobs or robbery.” Wilson v. Southern Pacific R. Co. 62 Cal. 164, as to loss by fire. 3 Am. & Eng. Enc. Law, pp. 750, 751 and cases.
Negligence is an affirmative fact, to be established by proof. Rutledge v. Ry. Co. 24 S. W. 1053. The burden of sustaining the affirmative of an issue involved in an action is upon the party alleging the facts constituting the issue. Heinemann v. Heard, 62 N. Y. 448.
The appellant asked the court to instruct the jury that the burden as to negligence was on the plaintiff, which he refused to do. This was error. For the errors indicated the judgment is reversed, and the cause remanded for a new trial.
