Great Western Railroad v. Bacon

Caton, C. J. This was an action on the case for killing a mnle. The plaintiff below relies only on the first count of "his declaration to maintain his judgment. This count is on the statute which requires the railroad company to fence its road where it runs through enclosed lands, except where it is fenced by the proprietor, or where the company has a contract with the proprietor of the lands that he shall fence the road. The mule was killed by a train on the defendant’s road, at a place where it passes through enclosed grounds, and where it is not fenced, and the only question is, whéther it was the duty of the plaintiff to prove that there was no contract between the company and the proprietor of the land that she should fence the road. The statute requires, in general terms, all railroad companies to fence their roads, and then makes several exceptions, one of which is, where it runs through enclosed lands, the proprietor of which has agreed to fence it. We have Repeatedly held that it is necessary, in pleading, to negative all those exceptions. Whether it is necessary for the plaintiff to prove these negative averments, must depend upon their nature and character. Where it is as easy for the plaintiff to prove the negative as it is for the defendant to disprove it, then the burthen of proof must rest upon him, as that the place where the animal was killed was not in a town or village, or was not more than five miles from a settlement; but where the means of proving the negative are not within the power of the plaintiff, but all the proof on the subject is within the control of the defendant, who, if the negative is not true, can disprove it at once, there the law presumes the truth of the negative averment, from the fact that the defendant withholds or does not produce the proof, which is in his hands if it exists, that the negative is not true. In other words, the burthen of proof is thrown upon the defendant to prove the affirmative against the negative averment. There are cases between these extremes, where the party averring a negative, is required to give some proof to establish it. Indeed it is not easy to lay down a general rule by which it may be readily determined upon which party the burthen of proof lies, when a negative is averred in pleading. Each case must depend upon its peculiar characteristics, and courts must apply practical common sense in determining the question. When the means of proving the fact are equally within the control of each party, then the burthen of proof is upon the party averring the negative; but when the opposite party must, from the nature of the case, be in possession of full and plenary proof to disprove the negative averment, and the other party is not in possession of such proof, then it is manifestly just and reasonable that the party thus in the possession of the proof should be required to adduce it, or, upon his failure to do so, we must presume it does not exist, which of itself establishes the negative. Such is the case here. If the railroad company has a contract with the proprietor of this land that she shall fence it, it is no trouble to produce it, and thus exonerate itself from the liability to build the fence. If the defendant does not produce such a contract, the presumption is that none exists. We think the judgment of the court below was correct, and it must be affirmed. Judgment affirmed.