28 Kan. 200 | Kan. | 1882
The opinion of the court was delivered by
This was an action in which the defendant in error, plaintiff below, recovered judgment against the rail
The reasoning of that case applies here. The night herd law is not named in the statute. There need be in the petition no allegation as to its wants of operation or application. It is something whose operation and application will not be presumed and must be shown; and generally wherever a fact is beneficial to a party, it must be proved by him, or its existence may be ignored. We think therefore the court ruled correctly in respect to this matter.
But upon the testimony, coupled with the answers returned by the jury, we think it affirmatively appears that the animals were in fact injured in the night-time. It is clear that the animals were injured between 6 o’clock p. M., June 25th, and 8 o’clock A. at., June 26th, and so the jury found. The plaintiff’s testimony is absolutely silent as to when during this period, and by what train, these animals were injured. The jury also found that the engineers who ran trains along there by daylight during this time were Hosp and Stevens, and the testimony supports this finding. The entire testimony also shows that the animals were killed by a train going east, and Stevens was the only engineer who in the day-time ran such a train. The animals were found on the south side of the track, and must have been thrown off on the right-hand side of the train going east. Both Hosp and Stevens testified that they did not strike any animal that morning, and the entire testimony shows that when running in the day-time an engineer will almost certainly know if the engine strikes an animal and throws it off on the right side of the train. Bohner, who ran an engine along the road there, saw an animal which had been struck lying on the south side of the track, and other witnesses testified to hearing the train going east whistle for stock near midnight. Three trains went east at or about midnight, the second of which was run by Bohner. So that the case stands about thus: The plaintiff’s testimony is