which an animal was injured was adapted to the carriage of animals, where that question is in issue.45 A shipper has the burden of proving that a car furnished by a railway company was infected with the germs of Texas fever, and that the company was chargeable with knowledge thereof, and that the cattle contracted the fever in the car.46

§ 7715. Validity of Valuation Placed on Consignment.-The burden of proof is on the shipper, suing for injuries to live stock, to show that a valuation placed on the property in the contract of shipment, on which the rates of transportation were based, was invalid and not binding on him.47

§ 7716. Care in Running Street Cars.-The plaintiff has the burden of establishing negligence of the defendant in cases of injuries by collision of a street car with a vehicle.48 He also has the burden of showing that the gong was rung unnecessarily, where he claims that his horse was frightened thereby and ran away.49 Proof of the improper condition of a street railway track, causing an injury to a traveller on the street, makes a prima facie case of negligence against the company, which, however, may be rebutted by evidence tending to show that the condition had not existed a sufficient time to admit of it being remedied before the occurrence of the accident.50 The escape of electricity from a street railway to the injury of horses be

s. c. 31 N. E. Rep. 781; 17 L. R. A. 339; Grieve v. Illinois &c. R. Co., 104 Iowa 659; s. c. 9 Am. & Eng. R. Cas. (N. S.) 669; 74 N. W. Rep. 192; Kansas &c. R. Co. v. Reynolds, 8 Kan. 623; Louisville &c. R. Co. v. Hedger, 9 Bush (Ky.) 645; Texas &c. R. Co. v. Arnold, 16 Tex. Civ. App. 74; s. c. 40 S. W. Rep. 829; Galveston &c. R. Co. v. Chittim (Tex. Civ. App.), 28 S. W. Rep. 700 (no off. rep.). An owner of live stock who accompanies them during their shipment has the burden of proving, in an action for the death of one of the animals through the alleged refusal to allow it to be unloaded, that the demand was reasonable, and that such demand was clearly made: Regan v. Adams Exp. Co., 49 La. An. 1579; s. c. 22 South. Rep. 835. On proof of delay in delivery of cattle by a carrier at the place of their destination, a prima facie case is made against it, and

the burden of proof is on it to show that it was not responsible therefor: Bosley v. Baltimore &c. R. Co., 54 W. Va. 563; s. c. 46 S. E. Rep. 613.

45 Western Railway v. Harwell, 91 Ala. 340; s. c. 8 South. Rep. 649; 45 Am. & Eng. R. Cas. 358.

40 Railway Co. v. Henderson, 57 Ark. 402; s. c. 21 S. W. Rep. 878. 47 United States Exp. Co. v. Joyce, Ind. App. ; s. c. 69 N. E. Rep. 1015.

48 Thomas v. Citizens' &c. R. Co., 132 Pa. St. 504; s. c. 47 Phila. Leg. Int. 223; 20 Pitts. L. J. (N. S.) 437; 19 Atl. Rep. 286; 25 W. N. C. (Pa.) 399; Rombach v. Crescent City R. Co., 50 La. An. 473; s. c. 23 South. Rep. 604.

40 North Chicago St. R. Co. v. Harms, 59 Ill. App. 374.

50 Casper v. Dry Dock &c. R. Co., 23 App. Div. (N. Y.) 451; s. c. 48 N. Y. Supp. 352.

ing driven on a public street, is regarded as presumptive proof of negligence in the operation of the railway.51

§ 7717. Street Railroad Signals at Crossings.-The plaintiff, in an action for injuries received on a street railroad crossing, should adduce testimony to prove a regulation, rule or custom requiring the sounding of bell or ringing of gong at such crossing, or that such signals shouldı be given at every crossing of streets in the city and under all circum-1 stances.5

52

§ 7718. Burden of Proof of Authority of Servant.-The authority of servants is ordinarily a question of fact to be determined by the jury, and the burden of proof rests on the party alleging such authority.5 Thus, a trespasser on a freight train suing for injuries caused by his expulsion by a brakeman, will be required to show that the brakeman had authority to expel him.54 The authority of the driver of a street car to eject trespassers, however, is inferrable from the fact and character of his employment, and proof of his express authority so to act is unnecessary.55

§ 7719. Care in the Relation of Master and Servant Generally. -Under this head it may be said, generally, that the plaintiff carries the burden of proving the master's negligence," and that his injuries

61 Trenton Pass. R. Co. v. Cooper, 60 N. J. L. 219; s. c. 38 L. R. A. 637; 37 Atl. Rep. 730.

52 Barrett v. Columbia R. Co., 20 App. (D. C.) 381.

Wilson v. Missouri &c. R. Co., 66 Mo. App. 388; s. c. 2 Mo. App. Repr. 1366; Halverson v. Chicago R. Co., 57 Minn. 142; s. c. 58 N. W. Rep. 871. A local agent or subordinate employé of a railroad company cannot, in the absence of proof to that effect, be presumed to possess the authority or discretion necessary to enable him to ratify the wrongful act of another employé: Gulf &c. R. Co. v. Reed, 80 Tex. 362; s. c. 15 S. W. Rep. 1105. It will not be presumed as matter of law that a station agent upon a railway was, by virtue of his relation to the company, charged with the duty of seeing that a derrick erected near the station was kept in safe and proper condition: Gates v. Chicago &c. R. Co., 4 S. D. 433; s. c. 57 N. W. Rep. 200.

Chicago &c. R. Co. v. Brackman,

78 Ill. App. 141; Corcoran v. Concord &c. R. Co., 56 Fed. Rep. 1014; s. c. 6 C. C. A. 231.

55 Baber v. Broadway &c. R. Co., 10 Misc. (N. Y.) 109; s. c. 62 N. Y. St. Rep. 466; 30 N. Y. Supp. 931.

56 Mobile &c. R. Co. v. Holborn, 84 Ala. 133; s. c. 4 South. Rep. 146; Murray v. Denver &c. R. Co., 11 Colo. 124; s. c. 17 Pac. Rep. 484; Chielinsky v. Hoopes &c. Co., 1 Marv. (Del.) 273; s. c. 40 Atl. Rep. 1127; Donovan v. Harlan &c. Co., 2 Pen. (Del.) 190; s. c. 44 Atl. Rep. 619; Williams v. Walton &c. Co., 9 Houst. (Del.) 322; s. c. 22 Atl. Rep. 726; Southern Pac. Co. v. Johnson, 69 Fed. Rep. 559; East Tennessee &c. R. Co. v. Maloy, 77 Ga. 237; s. c. 2 S. E. Rep. 941; Railey v. Garbutt, 112 Ga. 288; s. c. 37 S. E. Rep. 360; Western &c. Co. v. Jackson, 113 Ga. 355; s. c. 38 S. E. Rep. 820; Minty v. Union Pac. R. Co., 2 Idaho 437; s. c. 21 Pac. Rep. 660; 4 L. R. A. 409; Atchison &c. R. Co. v. Alsdurf, 68 Ill. App. 149; Brunswick V. Strilka, 30 Ill. App. 186; Chicago

were the proximate result of such negligence. It will be incumbent on him to prove this negligence in the particular he alleges. Where he attributes his injuries to the fact that he was furnished defective appliances or tools, he must show this fact, and the master's actual or constructive knowledge of the existence of the defects. The rule has been stated in these words: "The burden is upon the servant who sues his master for damages resulting from use of defective machinery furnished by the latter, to establish prima facie (1) that the machinery was defective; (2) that the defects were the proximate cause of the injury; and (3) that the master had knowledge of them, or by the

proper exercise of care and diligence might have acquired such knowledge."co The burden resting upon an employé to prove negligence on the part of the master is discharged by reasonably satisfying the jury of such negligence.61

§ 7720. That Disobedience of Master's Orders Did Not Contribute to Injury. If it is shown that an employé for whose death an action is brought had disobeyed the orders of his superior, the burden is on the plaintiff to show that such disobedience did not contribute in any degree to the injury.62

§ 7721. Fellow-Servant Relation.-On the other hand, the master will carry the burden of proving that plaintiff was a fellow servant of the employé through whose negligence he was injured. And, where a train was being operated on defendant's railroad, and the brakemen were in their proper places, and the usual signals were given for the train, the company has the burden of proving that the train was being operated by persons who had no authority to act, or at an improper time.64

§ 7722. Competency of Child Assigned to Dangerous Machinery. -In the case of the employment of children around machinery calling for an exercise of judgment and discretion, the master has the burden of proving the competency of the child to operate the machinery with safety.65

§ 7723. Duty to Promulgate Rules.-The burden is on the plaintiff to show an omission of duty on the defendant's part in not making rules which would have given employés more effective notice of danger than the plaintiff received at the time of the accident; but he is not required to show exactly what rules should have been established."7

§ 7724. That Injury would have Occurred Notwithstanding Safeguards. An employer who fails to protect machinery with suitable

64 Whalen v. Chicago &c. R. Co., 75 Iowa 563; s. c. 39 N. W. Rep. 894.

Molaske v. Ohio Coal Co., 86 Wis. 220; s. c. 56 N. W. Rep. 475.

GG Corcoran v. New York R. Co., 58 App. Div. (N. Y.) 606; s. c. 103 N. Y. St. Rep. 73.

67 Texas &c. R. Co. v. Cumpston, 15 Tex. Civ. App. 493; s. c. 40 S. W. Rep. 546;

safeguards has the burden of proving that an accident would have occurred even though the machinery had been properly protected.**

§ 7725. Assumption of Risk.-The burden as to whether the servant had assumed the risk of the injury for which he brings his action may well be supposed to be in the same chaotic condition as the burden with respect to contributory negligence. In New York and in Texas," it seems that the burden of proving that the injured servant had assumed the risk of the danger from which his injury proceeded is upon the defendant; so that, if the evidence does not conclusively establish that the injured servant assumed the risk, the fact that the servant did not establish affirmatively that he had no knowledge of the source of danger and therefore did not waive it, will not prevent a finding that he was not chargeable with such knowledge;72 and so that, in an action against a railroad company for injuries received by an employé by reason of defective appliances, the burden of issue as to whether the employé knew of such defects and assumed the risk thereof rests upon the railroad company, and can be raised only by a special plea.73

§ 7726. Statutory Provisions for Protection of Employés.-As a general rule, an employé suing to recover against his employer for furnishing unsafe machinery or appliances, holds the affirmative of each of the statutory provisions on which his recovery depends, and assumes the burden of proving them affirmatively.74

6s Montreal Rolling Mills Co. v. Corcoran, Rap. Jud. Que. 8 B. R. 488. 69 As to which see Vol. I, § 364, et seq.

To Dowd v. New York &c. R. Co., 170 N. Y. 459; s. c. 63 N. E. Rep. 541; aff'g s. c. 61 App. Div. (N. Y.) 612 (mem.); 70 N. Y. Supp. 1138; Kueckel v. O'Connor, 73 App. Div. (N. Y.) 594; s. c. 76 N. Y. Supp. 829; aff'g s. c. 36 Misc. (N. Y.) 335; 73 N. Y. Supp. 546.

International &c. R. Co. v. Harris, 95 Tex. 346; s. c. 67 S. W. Rep.

315; aff'g s. c. (Tex. Civ. App.), 65 S. W. Rep. 885.

72 Dowd v. New York &c. R. Co., 170 N. Y. 459; s. c. 63 N. E. Rep. 541; aff'g s. c. 61 App. Div. (N. Y.) 612 (mem.); 70 N. Y. Supp. 1138.

73 International &c. R. Co. v. Harris, 95 Tex. 346; s. c. 67 S. W. Rep. 315; aff'g s. c. (Tex. Civ. App.), 65 S. W. Rep. 885.

74 Mobile &c. R. Co. v. George, 94 Ala. 199; s. c. 11 Rail. & Corp. L. J. 26; 10 South. Rep. 145.