dissenting. The plaintiff brought this action to recover damages for the killing of two of her mules by the train of the defendant company on November 17,1884. The *62plaintiff, after offering testimony tending to show that the animals were kdled by the train, closed her case, without offering any testimony tending to show negligence on the part of the defendant, whereupon the defendant moved for a- non-suit, which was refused. The defendant then' offered testimony tending to show the facts and circumstances under which the animals were killed, for the purpose of showing that there was no negligence on the part of the defendant, and for the purpose of showing that the mules were killed outside of the pasture in which they had been placed, and from which they had escaped by reason of a defective fence, arid strayed on to the track of the defendant company, where they were killed, at a point where the land on which the track was located did not belong to the plaintiff, and was not enclosed in the pasture. The plaintiff offered testimony in reply, and the case went to the jury, who found a verdict for the defendant, and judgment being entered thereon, the plaintiff appeals upon numerous grounds in which exception is taken to nearly every proposition contained in what seems to be the carefully prepared charge of the Circuit Judge, set out in the “Case,” as well as to his refusal to charge as requested. It will not be necessary to consider these grounds in detail, but only to determine the material questions raised by them. These questions are, 1st, as to the application of the rule in Danner’s Case; 2nd, as to the effect of the stock law; 3rd, as to the instructions given to the jury in regard to section 1499 of the General Statutes.
Judge Kershaw, before whom this case was tried, unquestionably recognized the rule in Danner’s case, as it was only upon that ground that he could have refused the motion for non-suit. But in addition to this, when he said to the jury, “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,” he not only recognized but explicitly .stated the rule to the jury. The real complaint is, however, that when he added the following language, “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 or not there was negligence on the part of the *63defendant, and the burden of proof is on the plaintiff',” he improperly restricted the application of the rule.
This gives rise to the vital question in this case, a question which has not yet been distinctly decided by this court. In order to determine this question properly, it is necessary to inquire into the nature and foundation of this celebrated rule. That it is simply a rule of evidence, is clear from the language used by Judge Frost in the case in which it was originally propounded, and is made more manifest by the following language used by the Chief Justice in the recent case of Jones v. C. & G. Railroad Company, 20 S. C., at page 254: “There seems to be some misapprehension as to the real point decided m- Danner’s case, as well as to the principles upon which it rested. The court did not decide that railroad companies were responsible in all cases where stock were killed on their track, whether the killing was wilful, negligent, or accidental, nor did it discriminate between slight, ordinary, or gross negligence. These questions were untouched and left under the operation of the common law rules already established. But what the court did decide was rather in the nature of a rule of evidence than otherwise, determining the quantum of testimony which might carry a case of this kind to the jury, and it seems to have been founded upon what the court regarded as a necessity in such cases. The court simply held that the plaintiff upon proof of the killing might rest; that this would make out a prima facie case of all that was necessary to hold the defendant responsible, and if it remained unexplained, liability attached.”
This is apparent, too, from the nature of the cause of action, one of the essential elements of which is the defendant’s negligence, and which must, therefore, be established by the plaintiff in order to entitle him to recover. The test of this is that a failure to allege negligence in the complaint would be fatal on demurrer, as the complaint would fail to state facts sufficient to constitute a cause of action. And here lies the difference between this action and an action to recover damages for a trespass. There, it is only necessary to allege, and, of course, only necessary to prove, the act of violence constituting the trespass complained of, and any,matter of excuse or justification relied on by the defen*64dant is a matter of defence, and must be proved by him. Here, however, the negligence of the defendant is an essential element in the plaintiff’s cau^e of action, and must, therefore, be not only alleged, but proved by him, and the only effect of the rule in Danner’s case is to declare what shall be sufficient prima facie evidence of such negligence in certain cases. It certainly never was designed to impair or in any way infringe upon the well settled and time-honored rule that he who alleges must prove, and that a plaintiff must, therefore, establish by legal and satisfactory evidence all the essential elements of his cause of action.
This being the nature of the rule, the next inquiry is as to the foundation upon which it rests. As has already been seen, it is founded upon the necessity of the case. Indeed, it would be difficult to find any other foundation upon which it could rest. It can scarcely be said that the natural and reasonable inference is that whenever cattle are killed by a railroad train,’ it is the result of negligence on the part of those in charge of the train. When it is considered that a collision with cattle or other obstruction on the track always endangers not only the property of the railroad company, but also the lives of its employees in charge of the train, it would seem that the natural and reasonable inference would be the other way, and that the natural instinct of self-preservation would pre-suppose care rather than negligence on the part of those in charge of the motive power of the train. Be that as it may, however, the authorities clearly show that this rule was founded on the necessity of the case, arising from the fact that where animals are killed by a railroad train, the owner of such animals is rarely able to produce witnesses to prove the circumstances under which they are killed, while the railroad company, having the control of their employees entrusted with the management of their trains, can readily produce such witnesses.
To use the language of Judge Frost in the case of Danner: “That the company did not produce witnesses to show how the damage occurred, nor explain why they omitted to do so, tends to induce the belief that they could make no defence. They had the witnesses under their control. The plaintiff may not have been present when his cattle were killed, and may not be able to discover who were the persons employed on the train when the *65damage was done. When a party is charged with an act or declaration which may subject him to an action, and does not deny it, his silence is construed into an admission. The same construction may be put on a party’s omission to offer testimony in his defence, when it is in his power to produce the witnesses who might exculpate'him.” This language is quoted with approval by the Qhief Justice in Jones v. C. & G. Railroad Company, 20 S. C., at page 255, and to it is added these words: “This was the principle upon which the case (Danner’s case) turned, to wit, the fact that it was in the power of the defendant alone to explain, and that he failed to attempt it.”
Such, then, being the nature and foundation of this purely artificial rule of evidence, it would seem clear that it is only applicable where the necessity for it exists. Oessante ratione, eessat ipsa lex; and that where, as in this case, the witnesses who were present at the time are examined, and the facts and circumstances under which the animals were killed are in testimony before the jury, there is no room or necessity for any presumption, and the jury must determine from such facts and circumstances alone whether a case of negligence has been made out.
Indeed, this is the necessary inference from the terms of the rule as stated in the cases. In Danner’s case it is thus stated: “The point is whether, when it was proved that the cattle of the plaintiff, pasturing on his own land, were killed by the passenger train of the company in its progress along the track of the road, and the particular circumstances of the destruction were not disclosed, the jury might infer negligence from these facts.” The rule as stated in Wilson v. Railroad Company, 10 Rich., 52, is manifestly taken from the syllabus of Danner’s case, and not from the opinion of the court as given above, and, therefore, requires no further notice. In Murray v. Railroad Company, 10 Rich., 227, the rule is not formulated, but Judge Wardlaw, in delivering the opinion of the court, uses this language: “The court acquiesces, too, in the reference which the recorder made to Danner’s case, for the presumption which arises from the killing of the horse by a train of cars, established and unexplained, and for the unfavorable inference raised by the absence of all the defendant’s agents who were at the killing. Negligence rather than accident *66is shown by proof of damage done'by a train, when nothing more appears."
In Jones v. C. & G. Railroad Company, 20 S. C., at page 254, the Chief Justice, in commenting upon and explaining Danner’s case, used this language: “The court did not hold that the proof of negligence was unnecessary, or that it was not incumbent upon the plaintiff to offer such proof, but it held-that while this, fact was a necessary ingredient in the liability of defendant, yet the proof of the killing, unexplained by the circumstances or by the testimony of the defendant, furnished in itself sufficient evidence of the presence of such negligence as would hold the defendant responsible.” The italics used in the foregoing quotations are not employed for the purpose of conveying the impression that they are to be found in the cases from which these extracts are taken, but solely for the purpose of indicating what language is relied upon to show that the rule has always been confined to those eases in which the necessity for it exists — that is, where the fact that animals have been’killed by a railroad train has been proved, and nothing more; and that there is no authority for its application where the facts and circumstances of the killing are in evidence, from which the jury can determine whether there was any negligence on the part of the defendant.
Indeed, it is difficult to understand how the rule could be applied to such a case without not only utterly disregarding the foundation upon which it rests, but also changing its very nature, by which, in a. certain class of cases, evidence is artificially supplied in the absence of testimony derived from the usual sources. For, when the facts and circumstances attending the killing are put in evidence, the jury must undoubtedly weigh them for the purpose of determining whether there was any negligence, and how such facts and circumstances are to be compared in weight with an artificial presumption — an unknown quantity — it is difficult to conceive. The only way such a presumption could operate in such a case would be by changing the burden of proof, and this would be in violation of the well settled rule both of logic and of law, that he who affirms must prove, and would not only relieve a plaintiff from establishing in the first instance one of the facts material to his cause of action, by testimony drawn from the *67usual sources, but would require the defendant to disprove such fact.
It is contended, however, that the foregoing views are in conflict with the recent decision in the case of Fuller v. The Port Royal & Augusta Railway Company, 24 S. C., 132, and it cannot be denied that some of the language used in that opinion, when looked at-apart from the question made in that case, does appear to support such contention. But a careful examination of that case will show that the point there decided, which alone is authority, is not in conflict with the views above announced. In that case the Circuit Judge was requested to charge the jury, “That when the plaintiff proves the ownership and the fact of killing, he makes out a prima facie case and negligence is presumed; but when the defendant introduces evidence and explains the fact of the killing, the plaintiff is required to prove by a preponderance of testimony that the defendant was negligent;” and the sole question presented by the appeal wras whether the judge erred in refusing to charge as thus requested. Now, when it is considered that the rule is, that “where requests are made for the charge of the judge upon propositions submitted as a whole, unless they are correct as a whole, it is not his duty to disconnect them, sustaining such as are sound and rejecting such as are unsound. He is to consider them as presented, and sustain or reject accordingly” (Gunter v. Graniteville Manufacturing Company, 15 S. C., 443), it is very manifest that there was no error in refusing to charge the request in the form in which it was presented, as it implied that even though the evidence offered by the defendant explanatory of the fact of the killing might of itself show negligence, yet, still, the plaintiff would be bound to offer evidence to prove negligence.
As is said in Fuller s Case: “If the appellant had called upon the presiding judge to charge that in case the explanation disproved negligence, then the presumption could have no avail, but that plaintiff’s case should then depend upon the preponderance of his evidence weighed with defendant’s evidence; or if the 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 *68the fact of killing was overthrown would depend upon the preponderance of the evidence, and the judge had declined to so charge, his appeal would be sustained. But this was not the request. The request was, that in every case where the defendant explained the killing, whether this explanation had the effect of failing to exculpate, or exculpating, or inculpating the defendant, the presumption is expunged from the case, and that the plaintiff is then required to prove, by a preponderance of testimony other than the presumption, that the defendant had been negligent.” The real vice in the request was that it went too far, and covered a case in which the testimony adduced by the defendant might itself show negligence; and, therefore, as it could not properly be charged as a whole, under the rule above stated, there was no error in refusing it altogether.
The true view of the matter is, that the artificial rule of evidence established by Danner’s case can only be available in the absence of testimony derived from the usual sources, but where such testimony is adduced, then the jury must draw their conclusions from that testimony, as in all other cases. It is quite clear that Judge Kershaw instructed the jury in accordance with this view, and hence there was no error on this point.
2nd. As to the stock law. The jury were practically instructed that since the enactment of that law, the same amount of care is not exacted of a railroad company in running its train through unenclosed lands as formerly, for the very obvious reason that now, since by statute it is made unlawful for the owners of cattle and other domestic animals to suffer them to roam at large beyond the limits of their own land, those in charge of railroad trains have not the same reason to expect to find cattle or other animals upon the track running through unenclosed lands as formerly, and, therefore, the same amount of care is not required to avoid collisions with such unexpected obstructions. In this there was no error. On the contrary, it seems to be in accordance with what was said in Simkins v. C. G. Railroad Company, 20 S. C., at page 265 : “It should be observed here, however, that negligence is a relative term, and its existence in a given case depends upon the requirements of the occasion. I mean to say that an act may be negligent under one state of facts, when the *69same act, under a different state of facts, might be entirely free from negligence. For instance, to drive a wild and dangerous horse, and of unusual speed, along a crowded street, with hundreds of persons and vehicles on the way, would be a negligent act, for the injurious consequences of which, if any, a party could, no doubt, be held responsible; but to drive the same horse, at the same speed, along an unoccupied street, or along some secluded road in one’s own enclosure, seldom or never travelled by others, might be free from every feature of negligence. So, too, in those .counties in the State where the stock law has not become the law, and where cattle are at liberty to roam at large upon railroad tracks and elsewhere, at will, for a train of cars to dash forward, without the precaution which should be observed in such cases, might be negligent; whereas the same train, going at the same speed, and without the same precaution, in the counties where the stock law has been adopted and where the railroad employees had no thought that cattle would be found on the track, would not be a negligent act.”
Whether it was a trespass for the mules of the plaintiff to go upon the unenclosed track or right of way, beyond the limits of the plaintiff’s land and outside of the enclosed pasture in which they had been placed, in such a sense as would have justified the railroad company in taking up the animals and exacting from the owner the penalties provided by the stock law, is an immaterial inquiry in this case. In fact, it is not material to inquire as to whether the mules were, in any sense, trespassing on the railroad track, for the jury were not instructed that the fact that the mules were trespassing would relieve the defendant from liability unless gross negligence was established, as was insisted upon in the case of Simkins, sujora, and in the case of Jones, supra. On the contrary, the jury were, in effect, told that even if the animals were trespassing, the defendant wmuld be liable if the injury resulted from the want of ordinary care on the part of the servants of the company; and this was in accordance with the rulings in the two cases just cited.
3rd. As to the instructions given to the jury in regard to section 1499 of the General Statutes. In the absence of any evidence tending to show a failure on the part of the company to *70comply with the requirements of that section, it is difficult to understand how the Circuit Judge could have properly instructed the jury otherwise than he did do. Where an attempt is made to hold a party liable for a failure to comply with the provisions of a statute, surely some evidence tending to show such failure should be offered.. Otherwise, the court, contrary to well recognized principles, would be asked to presume that a person has violated the law.
The requests to charge must be considered, not as abstract propositions, but with reference to the case as made by the evidence. So considered, under the views hereinabove taken, they were properly refused.
The question, whether the non-suit was properly refused, though argued here, is not properly before the court. The defendant does not appeal, and it does not appear in the “Case” that any exception was taken to the refusal of the motion. It may, however, be added that, under the rule in Danner’s case, the motion was properly refused, for when the motion was made, no testimony as to the facts and circumstances attending the killing of the mules had been offered, and in that condition of things the rule was applicable.
For these reasons I am unable to concur in the conclusion reached by the majority of the court.
New trial granted.1
This completes the cases of April Term, 1886.