101 Ind. 419 | Ind. | 1885
The cow of the appellant was killed upon a
Where there is an essential want of evidence, a demurrer by the party not having the burden should be sustained. It is not sufficient that the evidence sustains many points; it must sustain all the points essential to the existence of the cause of action declared on. In such a case as this an essential element in the plaintiff’s cause of action is the fact that he was himself free from contributory negligence. It is too well settled to admit of debate that a party who sues for an injury to person or property resulting from negligence must prove that he was himself without negligence. Cincinnati, etc., R. W. Co. v. Hiltzhauer, 99 Ind. 486, and authorities cited.
Where there is no order of the board of commissioners allowing cattle to run at large, the common law rule prevails, and an owner is deemed guilty of negligence who permits his cattle to wander upon a public crossing. Cincinnati, etc., R. W. Co. v. Hiltzhauer, supra; Wabash, etc., R. W. Co. v. Nice, 99 Ind. 152; Indianapolis, etc., R. W. Co. v. Caudle, 60 Ind. 112; Cincinnati, etc., R. R. Co. v. Street, 50 Ind. 225. The question was presented in Wabash, etc., R. W. Co. v. Nice, supra, as it is here, upon a demurrer to the evidence, and it was decided that the negligence of the owner in allowing his cattle to run at large precluded a recovery, and it was held that the demurrer to the evidence should have been sustained. Where there is no evidence tending to prove an order of the board of commissioners allowing cattle to run at large, the court may, as matter of law, declare that the act of the owner in permitting his cattle to run at large constitutes negligence.
Judgment affirmed.