The opinion of the court was delivered by
Mr. Chief Justice Simpson.
The actibn below was brought to recover the value of two mules alleged to have been killed by a train of the defendant. The case was heard before Judge Kershaw and a jury in July, 1885, the defendant obtaining the verdict. Both sides have appealed — the defendant because his honor the presiding judge, refused a motion for a non-suit, made at the close of the plaintiff’s testimony ; the plaintiff on several exceptions alleging error in the charge and in certain refusals to charge. Before stating our conclusions as to these various grounds of appeal, we deem it proper to notice first some of the general principles of law applicable to cases like the one at bar, as we understand them, which we will do in as few words as clearness and distinctness will admit of.
The gist of all such actions is negligence, which must be proved by the plaintiff to the satisfaction of the jury, under the established rules, before a recovery can be claimed. Now, what is negligence? Negligence, as held in many cases and as laid down by all text-writers upon the subject, is defined to be the absence of due care. What is due care ? Due care is a relative term, each case having its own requirements in that respect; or, in other words, each subject-matter under the control and management of a person having its own demands as to due care. Consequently, what would be due care as to one matter, would not necessarily be so as to another. On this account it has been impossible for the law to establish any precise standard or legal definition of due care suited to every case, and which the trial judge should deliver to the jury as matter of law, to be compared by them with the evidence, so as to reach a satisfactory conclusion on the question whether or not due care is absent or present in a special case. All, therefore, that the law has determined as a [52]*52general rule, and all that the judge in charging upon this subject need say, is that the presence of due care negatives negligence, and that the absence of such care constitutes negligence, or, rather, affirms its presence, the jury being left to determine for themselves what due care requires, which in most cases, and especially in all matters of common concern, they are' supposed to know, having a standard in their own minds with which they can compare and consider the testimony. In other cases outside of the ordinary concerns0 of life, and even in any case we suppose, if thought advisable, the testimony of experts or of others well informed upon the subject might be offered by either party to show what due care required in the special matter before the court, and for the information and guidance of the jury.
Now, as negligence, which, as we have seen, is the absence of due care, is the gist of actions like the one below, in order to recover in such actions, the absence of due care must be proved by the plaintiff. How is it to be proved ? It may be proved by showing the existence of facts and circumstances -which could not have occurred if due care had been present or had been exercised, and if such proof is introduced by the plaintiff, his case is made out, unless counter-testimony sufficiently strong to overthrow the plaintiff’s evidence is introduced by the defendant. And we may say that this is the general, and perhaps the most satisfactory, way of proving negligence, to wit, by the proof of facts and circumstances of a character which could not have existed if that due care had been exercised which, in the opinion of the jury, founded upon their own knowledge or evidence, as the case might be, the matter in hand required. While this is the general way, yet can it be said that this is the only -way in this State ?
This brings us to Danner's Case (4 Rich., 330), which of late has become so prominent. We do not propose to discuss this case, or to examine again into its basis or foundation, with the view to test its correctness. It was decided in 1851, and it has been followed and affirmed in several cases since, after full consideration of the principles upon which it was originally based— some of these cases reaching down to a very recent date, due regard being had in their adjudication to the recent acts known as the “stock law.” Under these circumstances we must regard [53]*53the rule laid down therein as the settled law of South Carolina, at least as long as these eases stand unoverruled. What is the rule in Danner s Case? Briefly, that case decided that, in cases like that before the court, evidence by the plaintiff that his cattle had been killed by a railroad train, proved by legal inference the absence of due care, in other words, the presence of negligence— at least so far as to allow the plaintiff to rest and to await the defendant’s testimony, the plaintiff being entitled to recover unless the defendant’s testimony removed or overthrew the prima fades thus made out by the plaintiff. It was a judicial determination of the effect which such testimony offered by the plaintiff should have in all such cases, and it was established from the necessity of the case.
To state the rule and its effect somewhat more distinctly, we may say, that while, as a general rule, the plaintiff, in order to establish negligence which he has charged and which is the gist of his action, should prove the existence of facts and circumstances, if within his power, sufficient to exclude the idea of due care, yet in cases like that below, Danner’s case has established the principle (which may be regarded as an exception to the general rule), that proof of the single fact of the killing of plaintiff’s cattle shall have the effect in the first instance of the proof of all the facts necessary to show negligence — the court in that case determining not that the plaintiff could recover without proving negligence, or that it was the duty of the defendant to disprove it in advance of the plaintiff proving it, but that the plaintiff’s evidence was sufficient prima facie to establish it.
If this be the true meaning of the rule in Danner’s case (and of this there can be no doubt), then it must be conceded that when a case is brought under that rule by the required evidence, negligence at. once attaches to the defendant by presumption of law. The question now arises, how long is this prima facie presumption to remain, and to what extent is it to go ? Suppose the defendant in reply introduces testimony purporting to show the attendant facts and circumstances, does the presumption still remain of force, until it is determined by the jury that these facts and circumstances have overthrown it by establishing the presence of due care, or does it cease ipso facto by the introduction of such [54]*54testimony, leaving, then, the question of negligence to depend upon the force and effect of such testimony, unaffected by such presumption? In other words, will the introduction of such testimony by the defendant expunge the presumption, leaving the case to stand upon the circumstances thus brought to light, with the onus on the plaintiff to prove negligence therefrom, as in ordinary cases ?
"VYe think that when once this presumption is established, it remains of controlling force until the defendant’s evidence overthrows it by showing either due care, unavoidable accident, or something of that kind, the burden to show which, the prima facie case of the plaintiff, by operation of the rule in Danner’s case, has thrown upon the defendant. We think so, for several reasons. In the first place, the adverse doctrine would completely emasculate and fritter away the rule. It would, in effect, overrule by implication Danner’s case, and all of the subsequent cases on the same line, in face of the fact that we have expressly declined to interfere with said rule. True, when all the attendant facts are brought forward, they will show, necessarily, either negligence or the absence of it, and in such case the presumption cannot be of much importance; but who is to say whether or not all the facts are brought to light in a given case ? The doctrine against which we are contending is that the rule in Danner’s case applies only to cases where the defendant introduces no evidence — makes default; and that where he introduces testimony in his defence, whether such testimony exculpates him or not, yet at that moment and by that means the presumption is expunged and the rule avoided, leaving the case to be decided by the facts as presented, regardless of the presumption.
If this were the rule,' how easy it would be for the defendant in every case to escape liability. In most of these cases the defendant alone knows all the facts. He knows the favorable as well as the unfavorable circumstances, and if, he can remove the presumption, which is all that is against him at the close of the plaintiff’s testimony, by simply entering upon his defence, whether he makes a full or only a partial disclosure or not, of course he will stop short of inculpation. And who can say that he has stopped short ? Besides, if he can expunge the presumption by [55]*55simply offering testimony of such facts as he may choose to present, claiming them to be all the facts, he would have the power to determine the facts upon which the case would have to be tried, ■with the opportunity and inducement of excluding all such facts as might tend to inculpate him, thus leaving the rule in Danner’s case inert and lifeless, though still standing in our decisions as established law.
In the next place, while it is admitted that the presumption in question is not a conclusive presumption, yet we think it is a presumption belonging to that class known in the law as disputable, and in our opinion it is governed by the rule which has been established as applicable to such presumptions. Now, what is that rule? In Rapalje $ Lawrence Laiv Dictionary, title “Presumption,” we find the following: “Presumptions of this kind [disputable] are inferences which the law requires to be drawn from given facts and which are conclusive until disproved by evidence to the contrary. Thus, an infant between seven and fourteen is considered incapable of committing a felony, but evidence may be given to prove a felonious intent.” Or, as Mr. Greenleaf expresses it: “The rule in this class of presumptions [disputable] has been adopted by common consent from motives of public policy and for the protection of the general good, yet not as in the former class [conclusive] forbidding all further evidence, but only excusing or dispensing with it till more proof is given on the other side to rebut the presumption thus raised. * * *
This legal presumption is to be regarded by the jury in every case as matter of evidence, to the benefit of which the party is entitled.” 1 Cfreenl. JEvid., § 34.
So that the presumption in these cases being a legal one, drawn by the law, can be removed in no other way than by evidence sufficiently strong to rebut it. When the defendant offers no evidence, it becomes conclusive; when the defendant offers evidence which not only fails to explain, but in itself shows negligence, of course the plaintiff will prevail. But if defendant’s evidence overthrows the prima facies and makes out affirmatively a case of accident, the presumption is gone and the plaintiff must fail. Suppose, however, the evidence of defendant proves nothing, neither negligence nor the want of it, can it be said that the mere [56]*56offering of that evidence will remove the prima facies and shift the burden of proof, making it necessary for the plaintiff at, his peril to show' negligence by affirmative proof? We cannot think so. On the contrary, we think the proper understanding of the rule in Danner’s case, as in all other cases of legal disputable presumptions,'is that it remains until the explanation offered is strong enough to rebut it by making out affirmatively a case of accident.
The opposite interpretation, which limits the prima fades to cases where the defendant offers no evidence, is based upon the view that the presumption upon which the prima fades rests is only raised by the single fact of the defendant offering no testimony, and, therefore, when evidence is offered, there is no presumption, according to the maxim, eessante ratione cessat ipsa lex. If this assumption ivas true; there would be much force in the argument. But we do not agree to this interpretation. It is true that in some of the cases the circumstance of the defendant offering no proof is adverted to by way of justifying the application of the rule in such cases. Bjit we think a careful reading of the cases will show that it was not the absence of testimony simply from the defendant which required the rule, but it. was the absence of exculpating testimony, which, if it existed, the defendant alone had the power to produce, as it was not supposed that the plaintiff could know the facts, these occurrences frequently taking place in the night time and in unfrequented places, when no one is present except the employees of the road, the necessity of the case, therefore, requiring the rule.
That we thus understood and .interpreted the rule, when the recent case of Jones v. C. & G. R. R. Co. (20 Shand, 258) was decided, appears from the following language used therein, to wit: “The rule in Danner’s case required the judge to say when the killing was proved, that the plaintiff might rest, and if the defendant failed to explain this killing so as to exculpate the company either by proof that the killing was accidental, unavoidable, or free from negligence, then the fact of killing with the prima fade case which it made was sufficient, as this furnished all the proof which the case in the first instance required.” Nor was this in any way modified in the recent case of Fuller v. P. R. & A. R. R. Co., 24 S. C., 132. In that case we said: “If [57]*57the judge had been requested to charge that upon the defendant introducing evidence to explain the killing, that then, whether the presumption of negligence arising from plaintiff’s proof of ownership and the killing was overthrown, would depend upon the preponderance of the evidence, and the judge had declined to so charge, the appeal would be sustained;” showing clearly that we regarded the presumption of force until it was overthrown by the preponderance of the evidence; that having once been raised under Danner’s rule, it remained until removed by counter-proof overthrowing it, which would depend upon the preponderance. And this, it seems to us, is in exact accordance with the law laid down by our old court in Zemp v. Railroad Co. (9 Rich., 84), Judge Wardlaw delivering the opinion, in which,he said: “I agree entirely to the principle extracted from the case of Hyeman v. The Western R. R. Co. (16 Barb., 353), that ‘when a party (passenger) is injured on a railroad, there is, from that fact alone, prima facie evidence of neglect in the management of the road, which evidence defendant is bound to rebut. If this be the rule, and I am sure of it, how would this case, tested by it, stand ?’ The injury is abundantly shown, and the prima facie case thus plainly made out.” In that case much evidence was offered by the defendant, but the prima facies was not rebutted. True, that was a case of a passenger injured, but upon the point of removing the prima facies, we do not see how it can be distinguished from a case of cattle killed or injured, the underlying principle being the same in both cases.
Now, let the exceptions be tested by the principles above. And, first, as to the motion of non-suit made by the defendant. The judge refused this under the rule in Danner’s case, the plaintiff having closed her case on proof of the killing and the ownership of the mules in question. Thefe certainly was no error in this, as it cannot be contended that Danner’s case was not in point.
The plaintiff’s first exception is, that his honor erred in charging the jury that ‘‘To entitle plaintiff to recover, there must be evidence that the stock was killed by reason of the negligence of the defendant, and that the plaintiff in no manner contributed directly to the injury.” Understanding this charge to mean that, before plaintiff could recover, she was bound not only to establish [58]*58negligence on the part of defendant, but also to prove the absence of contributory negligence on her own part, we think the charge as to the latter portion was error. It was in conflict with the cases of Carter v. C. & G. R. R. Co., 19 S. C., 20; Couch v. Railroad Co., 21 Id., 495, and also with the general doctrine, that contributory negligence is a matter of defence which to avail the defendant must be made out by him.
Second., “That the defendant has the exclusive right to its track and right of way, and if the stock was on it without the permission of the defendant, it was trespassing.” The character of defendant’s right to its track and right of way, and, as an incident thereto, whether the stock was trespassing, would depend upon the deed or other conveyance under which the defendant was using the same. It would he a matter of construction, and as no deed or conveyance appears in the “Case,” we have no means of determining whether this exception is well taken or not.
Third. That his honor erred in charging, “That if the train was running at a lawful rate, and had the customary appliances and the customary force of trainmen, and the stock when seen by the engineer, or might with due care have been seen, was so close that the train could not be stopped in time to avoid striking it, then the plaintiff cannot recover.” In this his honor charges as matter of law, that the facts mentioned would show the presence of due care, thereby negativing negligence. We do not think this was error, because, while it is true, as we have said above, that as a general rule what constitutes due care, as well whether it is absent or present, must be left to the jury as a mixed question of law and fact, and while, also, the law having given no better definition of negligence than that it is the absence of due care, the judge would meet his duty in saying that much and no more, yet we do not think it would he legal error for a Circuit Judge to state to the jury in a like case that certain facts, if proved, would negative negligence, as was done by his honor below in the language of this exception. It is, therefore, overruled.
Fourth. That his honor erred in charging, “That much less care is required of railroad companies in providing against stock on its track since the passage of the stock law than before its passage.” We think this was in accordance with the recent cases of [59]*59Jones v. Railroad Company, Simkins v. Railroad Company, and other cases, and therefore not error.
Fifth. That his honor erred in charging, “That if the stock was on the track without permission, plaintiff cannot recover unless there was evidence to satisfy the jury that defendant might have a.voided the accident by the use of ordinary care and prudence.” This, if it be the law, would practically abrogate the rule in Danner’s case. It is not to be supposed that stock has ever been, or ever will be, on a railroad track by the “permission” of the company. No doubt, in every case, when on the track, they are there without “permission.” So that such a rule would require the plaintiff in every case to satisfy the jury that defendant might have avoided the accident by the use of ordinary care and prudence. We think this charge was error.
Sixth. That his honor erred in charging, “If you are satisfied that the injury did take place as alleged, then the inquiry will be, was the injury the result of accident, which could not be avoided by the use of due care on the part of defendant’s employees ? If so, the plaintiff cannot recover. If, however, the injury did take place as alleged, and might have been avoided by the use of due care by the defendant’s agents or servants, the defendant would be liable unless the injury was the result of the plaintiff’s negligence or misconduct. If the stock was killed as alleged, but was on the lands of the defendant at the time of the injury, and it has not been shown that the accident was the result of want of ordinary care and prudence on the part of defendant’s servants, the plaintiff cannot recover.” We see no error in this, provided that due weight was allowed to the rule in Danner’s case, as to the quantum of evidence sufficient to establish the absence of due care prima facie, and also the force and effect of such prima facies as laid down herein above.
Seventh. Because his honor erred in charging, “If there was no evidence in this case except that the cattle were found on the railroad under such circumstances as to justify the belief that they were killed by a collision with defendant’s cars, the law would presume that such killing was the result of negligence; but when the facts are known and put in evidence, there is no presumption of negligence, but the jury must find from the evidence whether [60]*60or not there was negligence on the part of the defendant, and the burden of proof is on the plaintiff. When the defendants are guilty of negligence, they are not excused from liability by the contributory negligence of the plaintiff, unless that negligence by the plaintiff Avas a proximate cause of injury.” So much of this charge as held that Avhen the facts are put in evidence by the defendant the presumption of negligence arising from the killing is removed, leaving the burden upon the plaintiff to shotv from the evidence independent of the presumption whether or not there was negligence, we think, for the reasons already given, Avas error, but in the remainder of this portion of the charge Ave concur.
Exception 8 complains that his honor, the Circuit Judge, failed to apply to the case section 1499 of the General Statutes, Avliich provides that good and sufficient brakes shall be attached to every passenger car and to all freight cars except four-Avheeled freight cars, and also upon every passenger train trusty and skilful brakemen, at least one to every two cars, and upon every freight train one to the last car of such train. His honor said as there was no evidence as to AA’hether the freight cars were four-wheeled or not, nor Avhether they Avere furnished with the number of brakes required, the presumption Avas that the company had complied with the act. This was equivalent to saying that if a complaint was founded on the fact that the company had violated the act in these respects, that in the absence of proof of such violation, the complaint could not be well founded. There was certainly no error in this.
His honor further said that the train being a mixed one, composed both of passenger and freight .cars, he was unable to apply the act (in so far, we suppose), as it required brakemen on passenger trains and freight trains running separately. Therefore he left it to the jury to determine Avhether the train was provided with the usual and proper appliances. Inasmuch as the act on the subject of brakemen applies in terms to passenger trains and freight trains considered separately, we do not see how it could be applied to a mixed train like the one in question, and, not applying, the Circuit Judge was not in error in ruling that the usual and proper appliances would be all that were necessary.
[61]*61The plaintiff made three requests to charge, which were declined by his honor. 1st. The killing being proved, the law presumes negligence until the contrary is shown, and this rule “of law is unaffected by the recent statutes requiring stock to be kept enclosed.” Under Danner’s Case, and, also, Jones’ and Simkins’ cases, supra, and Walker’s Cases, 25 S. C., 142, the plaintiff was entitled to this charge.
■ 2nd. “When it is doubtful whether an injurious act was negligent or accidental, the jury must decide, bearing in mind that it is not incumbent on the plaintiff to negative accident, but it is incumbent on the defendant to prove it.” The Circuit Judge was right in not charging this request as made. As we have already said in all of these cases, the gist of the action being-negligence, it is the duty of the plaintiff to prove it, and this may be done in one of the ways mentioned above, to wit, either affirmatively, by proving facts which will show negligence, or presumptively, by .the rule in Danner’s case; and until he makes out a case sufficiently strong to go to the jury in one or the other of these ways, the defendant may fold his arms. But such a case being made out, the defendant must by his evidence negative it, or the plaintiff will recover.
Brd. “To maintain the defence, that the killing is accidental, it is not enough to show that it was unintentional, but it must appear to have occurred unavoidably and without the least fault imputable to the person who does the injury.” In so far as the Circuit Judge, in refusing this request, thereby impliedly held that an unintentional injury could not be a negligent one, or rather the result of negligence, we think it was error. Such a principle would prevent recovery in almost every case, as doubtless in most cases, if not in all, where injury has resulted from railroad trains, it has been unintentional.
It is the judgment of this court, that the judgment below be reversed, and the case be remanded for a new trial.
Mr. Justice McGowan concurred.