C. L. Bethje v. The Houston and Central Texas Railway Company, 26 Tex. 604

Wheeler, C. J. There is no controversy as to the principles upon which the decision of the case on the merits depends. The law applicable to the facts of the case is not controverted, and is too well settled to require discussion or the citation of authorities. The only question is as to the correctness of the charge of the court respecting the burden of proof. Upon this point there is some contrariety of decisions. The subject was very fully considered in the case of Danner v. S. C. R. R.

Co., 4 Richardson, 329, and it was there decided that when the plaintiff proves that his cattle were killed by the train of the company (they being upon the track without fault on his part) he makes out a prima facie case of negligence which entitles him to recover, unless the company by proof of the particular circumstances under which the cattle were killed, rebut the presumption of negligence. The inclination of my own opinion is in accordance with this decision.

But the weight of authorities in this country seems to be the other way, the cases generally holding that the burden is on the plaintiff to prove negligence on the .part of the company. (Pierce on Am. R. R. Law, 357, and case cited.) And the majority of the court are of opinion that the charge of the court below to that effect was correct. The judgment is, therefore, affirmed. Judgment affirmed.