40-27-105. Burden of proof.

Statute text

The killing or injury of any animal by a railway company or corporation shall be prima facie evidence of the negligence of said railway company or corporation, and every railway company or corporation in this state and every assignee or lessee thereof shall be liable to pay to the owner the full value of each animal killed and all damages to each animal injured by the engines or cars of such railway company or corporation in this state or the assignee or lessee thereof unless the railway company or corporation, by competent evidence, shall affirmatively show that such killing or wounding was not caused by the negligence of such railway company or corporation or the assignee or lessee thereof. On the trial of all actions for damages arising under this article, in order to admit evidence of absence of negligence, the defendants shall first be held to show a compliance with sections 40-27-102 to 40-27-113 in relation to the erection and maintenance of fences, gates, and cattle guards.

History

Source: L. 11: p. 402, 4. C.L. 2866. CSA: C. 139, 52. CRS 53: 116-8-5. C.R.S. 1963: 116-8-5.

Annotations

 

ANNOTATION

Annotations

Annotator's note. Cases material to this section decided prior to its earliest source, L. 11, p. 402, 4, have been included in the annotations to this section.

Section only applicable when animals are killed or injured at points on the railroad where the law makes it the duty of a railroad company to fence its right-of-way. Denver & R. G. R. R. v. Dunn, 46 Colo. 150, 103 P. 387 (1909); Davis v. Holly Sugar Corp., 74 Colo. 331, 221 P. 1091 (1923).

Fact that plaintiff does not alone rely on section does not change burden of proof. The fact that plaintiff, suing for the value of an animal killed at a railroad crossing, in making his case does not alone rely on this section creating a presumption of negligence from the killing, but also introduced evidence of the negligence of the engineer and fireman, does not change the rule of burden of proof. Rio Grande W. Ry. v. Boyd, 44 Colo. 119, 96 P. 781 (1908).

Under this section the killing or injury of an animal by a railway company is prima facie evidence of negligence on the part of the company. When the killing is admitted, the burden is upon the company to disprove negligence. Denver & R. G. R. R. v. Hopkins, 69 Colo. 203, 193 P. 556 (1920).

Objection by company that no negligence is shown is without merit where prima facie case is not overcome. The company does not overcome the prima facie case or presumption of negligence by presenting and establishing by competent proof, any of the defenses which this section says it may interpose to such an action. It is the duty of the defendant to introduce any evidence it has, showing why plaintiff should not recover on the prima facie case made. If it fails to offer any testimony to the effect, the objection that no negligence was shown, is without merit. Denver & R. G. R. R. v. Wheatley, 64 Colo. 598, 173 P. 396 (1918).

Plaintiff can recover amount of damages proven. This section makes the mere happening of an accident, prima facie evidence of negligence on the part of the railroad company, and when the evidence establishes that the plaintiff's animal was injured on the railroad track by an engine of the defendant, a prima facie case of negligence is made, and plaintiff can recover the amount of damages proven. Denver & R. G. R. R. v. Wheatley, 64 Colo. 598, 173 P. 396 (1918).

Unless railroad shows affirmatively by proof that the killing was not caused by negligence. Chicago, B. & Q. R. R. v. Roberts, 10 Colo. App. 87, 49 P. 428 (1897), rev'd on other grounds, 26 Colo. 329, 57 P. 1076 (1899).

Unless it shows that its road was enclosed with a good and lawful fence. Chicago, B. & Q. R. R. v. Roberts, 10 Colo. App. 87, 49 P. 428 (1897), rev'd on other grounds, 26 Colo. 329, 57 P. 1076 (1899).

If the company fails in this regard it is liable regardless of any questions as to fences or yard limits. Denver & R. G. R. R. v. Hopkins, 69 Colo. 203, 193 P. 556 (1920).

If company shows that there was a lawful fence then the burden is on plaintiff to show negligence. In an action against a railroad company for killing stock, where the evidence shows that the road at the point where the animals were killed was enclosed by a good and lawful fence, the burden is then on the plaintiff to show that the killing was through the negligence of the railroad company. Atchison, T. & S. F. Ry. v. Cahill, 11 Colo. App. 245, 52 P. 1111 (1898).

Necessary to allege negligence of company under the common law. In an action, under the common law, against a railroad company for killing stock it is necessary to allege that the animal was killed by the negligence of the company, notwithstanding the provision of the statute placing the burden of proof upon the company to show that the killing was not caused by its negligence. Burlington & M. R. R. R. v. Shelter, 6 Colo. App. 246, 40 P. 157 (1895); Denver & R. G. R. R. v. Thompson, 12 Colo. App. 1, 54 P. 402 (1898).

Exercise of necessary care by engineer and fireman question for jury. In an action for the value of an animal killed at a railroad crossing, where the evidence is conflicting, the question of whether the engineer and fireman exercised the necessary care to ascertain if an animal were approaching the crossing, is for the jury. Rio Grande W. Ry. v. Boyd, 44 Colo. 119, 96 P. 781 (1908).

Where an engineer and fireman, by the exercise of proper care, could have discovered an animal at a crossing and slackened the speed of the train in ample time to have prevented killing it, their negligence was the proximate cause of the killing, and whether the owner was guilty of contributory negligence in turning the animal out on the highway in such close proximity to the crossing, was not involved. Rio Grande W. Ry. v. Boyd, 44 Colo. 119, 96 P. 781 (1908).

Letter of claim agent inadmissible in evidence. In a suit against a railroad company for killing an animal, a letter from the claim agent of the company to the owner was inadmissible in evidence as tending to prove acknowledgment of liability. Chicago, B & Q. R. R. v. Roberts, 26 Colo. 329, 57 P. 1076 (1899).