JONES V. THE N. C. RAILROAD COMPANY.

quiring of the witness whether or not he has made such representations. No reason can be given, why such representations may not be as well proved by the witness who made them, as by any other witness, save that they have a tendency to disparage him. But this doctrine, in regard to asking questions of witnesses, tending to disparage them, has been greatly modified in modern times, and it is now held that you may put almost any question to the witness, and that the witness is bound to answer it, unless the answer might subject him to an indictment, or to a penalty under a statute. The question, we think, should have been permitted, and he was bound to have answered it.

As this disposes of the case in this Court, it is unnecessary to decide the other questions made in the case, some of which are not free from difficulty.

There is error. This will be certified.

PER CURIAM.

Venire de novo.

EDMUND JONES vs. THE N. C. RAILROAD COMPANY.

In actions for damages, a party alleging negligence cannot shift the burden of proof to the other side, until he has proved facts, at least, more cousistent with negligence than with care;

Therefore, where a Railroad Company is sued for damages by its train to stock, after six months from the time of the injury, not only is the burden of proving negligence on the plaintiff, but he must show facts inconsistent with the probability of care; e. g., that the whistle was not blown.

{llerring v. W. & W. R. R. Company, 10 Ire. 402 cited and approved.]

Civil action, tried before Henry, J., at January Special Term, 1872, of the Superior Court of MECKLENBURG.

JONES . THE N. C. RAILROAD COMPANY.

There was a verdict and judgment for the plaintiff, and the defendant appealed.

The facts are stated in the opinion of the Court.

Vance and Dowd, for the plaintiff.

J. H. Wilson and R. Barringer, for the defendant,

Cited, Scott v. Wil& W. R. R. Co., 4 Jones, 432, Herring v. Same, 10 Ire. 402, Avery v. Saxton, 13 Ire. 247, and Acts of 1856-57, chap. 7.

RODMAN, J. The prayer of the defendant was, in substance, for the Judge to decide that, assuming all the evidence to be true, the facts proved did nɔt amount to negligence. It was in effect, though informal, a demurrer to the evidence. The Judge refused the instruction asked for, but told the jury that the burden of proof was on the plaintiff, and left it to them to decide whether there was negligence or not. This was, in effect, to decide that the facts which the evidence tended to prove, if believed to exist, did in law amount to negligence. For when the facts are found, negligence is a question of law. Thus the question is necessarily presented, Did the facts proved constitute negligence? The material facts are very few. The train of the defendant was proceeding on a down grade, on a track straight for about a mile, in the day time; the plaintiff's horse, being or getting upon the track, ran about two hundred yards in front of the engine, when it was overtaken and killed. It does not appear whether or not the whistle was blown, or any effort made to check the speed of the train, or whether from the declivity of the grade it could have been stopped before reaching the horse, after it was seen that he persisted in remaining on the track; or whether the horse could have got off the track, or was unable to do so by reason of its being in a deep cut, or on a high embankment. It is admitted, the action not having been brought within six months after the injury, that the burden of proving negligence

JONES V. THE N. C. RAILROAD COMPANY.

was on the plaintiff. But it is contended for the plaintiff, that the facts proved shifted the burden to the defendant, and required him to prove care. The truth of that proposition depends entirely upon whether the facts proved constituted negligence; not whether they raised a suspicion, and were consistent with negligence, but whether, from them, the jury could reasonably infer the absence of that ordinary care which the law requires. This is the question accurately stated. For it is familiar law, that it is not sufficient for the party upon whom the burden of proof is, merely to prove facts which are equally consistent with the guilt or innocence of the other party, but he must prove facts which, if not absolutely inconsistent with innocence, (as would be required in a criminal action), are, at least, more consistent with, and the usual accompaniments of guilt.

And a party alleging negligence can never shift upon his adversary the burden of disproving it, until he has given in evidence some fact which, tested by the above rule, is proof of negligence

Now to apply the rule to the present case. Every fact proved may be true, and yet the defendant may have used ordinary care; may have blown the whistle; may have made efforts to slacken the speed or stop the train, which were unsuccessful by reason of the steepness of the declivity or other cause. Notwithstanding all his efforts to the contrary, the damage may have happened. To hold that in such a case the burden is on the defendant to prove care, is to change the rule with which we started, viz, that the plaintiff must prove negligence, to the contrary one, that the defendant must prove care, and for no sufficient reason.

Let us take up each fact proved and see, whether separately or combined they are inconsistent with the probability of ordinary care. What are the facts? 1. The killing of the animal. It is conceded that by implication from the statute, if not by the prior law, that furnishes no presumption of negligence, unless the action be brought within six months.

JONES . THE N. C. RAILROAD COMPANY.

2. That the horse ran ahead of the train for two hundred yards before being overtaken. On this the following observations may be made: In Herring v. W. & W. R. R. Co., 10 Ire. 402, it was held, that it was not the duty of the engineer to stop or slacken his train, when he saw a human being on the track ahead of him, unless he knew that the man was drunk or asleep, or otherwise put out of the general rule. As men in general have the instinct of self-preservation and the power of locomotion, the engineer might reasonably suppose that he would take notice of the danger and get off the track. Under a contrary doctrine, individuals might so embarrass railroads as to make the running of trains practically impossible. The same reasoning will apply, though with somewhat less force, to horses and other animals; they also have the instinct of selfpreservation, though combined with less intelligence, and the power of locomotion. It would seem not to be a duty of the engineer to stop or slacken his train, whenever he sees an animal on the track. To do so would greatly impair the usefulness of the road, without a corresponding advantage to any one. But is is admitted to be clearly his duty to blow the whistle, for the purpose of frightening the animal. This precaution is usual, requires no sacrifice, and is generally successful. If it appeared that it was omitted on this occasion, it would clearly be evidence of negligence. But it does not so appear. That the whistle may have been blown is entirely consistent with all the facts proved. So that the question at last resolves itself into this: Was the burden on the plaintiff prove that the whistle was not blown, or on the defendant to prove that it was? But is conceded that the burden of proving negligence is on the plaintiff, and this answers the question. Until he proves, that the whistle was omitted to be blown (or some similar act) he has not given in evidence any act of negligence.

to

Judgment reversed.

PER CURIAM.

Venire de novo.

POWELL v. JONES AND OTHERS.

ELIZA O. POWELL vs. W. C. JONES, JOHN BOWLES, SMITH H. POWELL and NICHOLAS JENKINS.

Where a feme covert filed a complaint against the purchasers of certain land, sold under execution as the property of her husband, and their bargainee, alleging that the land was bought with money arising from her separate property, and the deed was by inadvertence taken in the name of her husband; and the said purchasers and their bargainee averred in their answers that they purchased for value, and without notice of her equity, and such averments were not controverted; Held that she was not entitled to relief.

CIVIL ACTION, tried before Mitchell, J., at Fall Term, 1871, of the Superior Court of CALDWELL.

The complaint alleged, that the plaintiff and the defendant, Powell, were married in 1838, and, before marriage, executed a contract, whereby such property as she then had, or might thereafter acquire, was secured to her separate use; that a few years after the marriage, her husband, as her agent, sold certain slaves that belonged to her, and with the money purchased a tract of land on which they made their home for eighteen years; that it was understood the deed was to be made to her, but by inadvertence it was made to him; that some time in the year 1869 the Sheriff sold the land, under executions against her husband, and they were dispossessed the defendants, Jones and Bowles, being the purchasers, and having afterwards contracted to sell to the defendant, Jenkins; and that the defendants purchased with notice of her equity. She asked judgment, that the defendant Powell be declared trustee for her, and be required to convey to her, that the Sheriff's deed to Jones and Bowles be cancelled, and they adjudged to be trustees for her, and for damages for the detention of the land.

The answers of the defendants Jones, Bowles and Jenkins, denied most of the material allegations of the complaint, and stated that Jones and Bowles bought for value under execu