T. & P. R. R. v. Miller

1 White & W. 104

• Court: Court of Appeals of Texas
• Decided: April 29, 1882
• Docket: No. 2263, R. Book No. 4, p. 228
• Status: Published

Opinion

Opinion by

White, P. J.

§ 262. Justices’ courts; pleadings in. Pleadings in justices’ courts are oral, except as otherwise specially provided. [Eev. Stats, art. 1513.] In suit against a railroad company in a justice’s court, it is not required that plaintiff should allege, as is required in district and county courts in such suits, that defendant “was a corporation duly incorporated.” [Rev. Stats, art. 1190; Life Insur. Co. v. Davidge, 51 Tex. 244.]

§ 263. Suit for stock killed; burden of proof; fences. Before the adoption of the statute on the subject of fencing a railroad track [Eev. Stats, art. 4245], the burden of proof to show negligence was in all cases upon the plaintiff. [Bethje v. R. R. Co. 26 Tex. 604.] Now, it is in the power of the railroad to defeat the claim for damages, except such as arise from want of ordinary care, by simply showing that the road was fenced; and whenever the plaintiff shows that his stock has been injured, the road is ipso facto liable for want of ordinary care, and the burden of proving that the track was fenced would be upon the railroad.

Affirmed.