(concurring). — The problem in this case is to find justly, and on sound principles of law, whether or not any acts or circumstances proved in the case fairly indicate, as d prima facie showing, that there was negligence on the part of appellant in committing the injury complained of. Appellant contends there is no such showing, while respondent insists that certain conduct of the appellant proved amounts to a prima facie admission that the injury to the animal happened in consequence of appellant’s negligence in operating its railroad.
Appellant is operating a railroad through open lands, upon which respondent has a right to pasture his domestic cattle. In order to determine the rights and liabilities of these parties in case of injury to any of such animals by the operating of the said railroad, the law provides (considering the statute and the case of Bielenberg v. Montana U. Ry. Co. 8 Mont. 271, together) that in case any such animals should be killed or injured by the operation of said railroad with due care, i. e., in case the injury or destruction occurred without any negligence on the part of appellant, its agent or employees, then it should be in no manner liable therefor¡; and it is further provided that, in case any such injury or destruction should happen through the negligence of appellant or its agents, then it should be liable to pay the owner of the animal injured the value thereof; but in that case appellant should have the animal so killed or injured, .and the right to take it át once, on the happening of the event. With these legal conditions existing, it happened that a train *486passing over said road, through said land, run upon and broke the leg of a certain cow belonging to respondent; and appellant being present, with its agents and employees, and its stock or claim agent, charged with the duty of looking after claims for injury to stock in such cases, and presumably knowing all the circumstances attending such injury, appellant’s claim agent immediately proceeded to take, or cause to be taken, said injured cow, killed it, sold it, and took the proceeds for the benefit of the railroad company.
Now, when the terms and conditions of the law are considered, in reference to the circumstances shown and the conduct of appellant in relation to said animal, would it be a violent presumption to conclude that appellant had by its voluntary conduct indicated, as a prima fade showing, that said animal was run upon and injured under such circumstances as to make it lawful for appellant to proceed to take the injured animal and treat it as its own? Did appellant indicate apparently, or prima fade, as it is said, by the conduct of its agents, that it had done something, considering its conduct in connection with the law, to authorize it to follow up the injury by taking the animal? The taking followed the injury as part of one transaction ; and, if appellant’s conduct is to be construed as indicating prima fade that circumstances had so happened as to give it the right to take the animal, the very essence of those circumstances was negligence in committing the first injury. Otherwise, when the injury happened, if without negligence, appellant could have gone its way, and left the owner of the animal to make the best he could of a misfortune for which appellant was in no wise responsible. Appellant is presumed to have done as it did knowing the law and the exact conditions of its liability, and its rights, if liable. If it is not reasonable to draw the presumption just proposed from the conduct of appellant, then some other construction is to be put upon its acts. Are we to presume that when appellant, without negligence, ran its train upon and injured the animal in question, and knowing consequently that it was without liability for the injury, and consequently was without right to take the injured animal, nevertheless, under those circumstances, appellant wantonly and unlawfully went outside of the course of its business, and, *487to add injury to misfortune, captured, butchered, and sold the animal, and pocketed the proceeds? Are we to presume that where the railroad company was clear of liability it unlawfully adopted this course of conduct? If there was no negligence on the part of the appellant, there was no liability; if there was no liability, it had no more right to take the crippled animal than any other person, and its taking was wrongful and unlawful; while, if the injury happened under circumstances of negligence on its part, it was liable for the injury, and it had a right to proceed as it did, and take the animal, and save what it could by assuming it. Here were two courses to pursue depending upon the very question whether or not negligence accompanied the injury. That was the very point which would order and shape and give course to appellant’s conduct, provided it acted upon the knowledge it had as to the law and the facts, and desired to act lawfully. If there was negligence, it could lawfully take the animal. If there was no negligence, it could lawfully go its way with impunity. Are we to presume appellant took the wrong, the unlawful course, and knowing all the circumstances attending the injury, and knowing that the facts were such that no liability ensued against it from what had happened, still the appellant captured and butchered said wounded animal, and disposed of it in the market, and took the proceeds ? Such is not to be presumed. No such construction is to be put upon the acts of appellant in this matter, where its conduct, in another view, can be regarded as lawful, and done in good faith, simply to avail itself of its rights; and this view involves the tacit prima facie admission by appellant’s conduct that there was negligence on its part in committing the injury complained of, which fixed its liability and gave it the corresponding right to take the animal. “ The law presumes that all acts are done in good faith until there is evidence to the contrary.” (McCagg v. Heacock, 34 Ill. 476; 85 Am. Dec. 327.) Mr. Lawson, in his work on Presumptive Evidence, page 93, states the familiar rule of law as follows: “A person who is shown to have done any act is presumed to have done it innocently and honestly, and not fraudulently, illegally, or wickedly; ” and cites many cases establishing and illustrating that rule.
I concur in affirming the judgment.