In an action for tort, the plaintiff must put the defendant in the wrong--by eyewitness or by circumstance. A locomotive engine is a huge appliance, monstrous in appearance and deafening in noise; it emits volumes of smoke, and discharges hissing steam; it rings a bell; it shrieks aloud; it rushes along its iron way at great speed and with thunderous noise.
The horse, the cow and the mule are incapable of care; there is no duty on them to stop and look and listen; their way of escape might turn out to be the way of peril; like dead men, they tell no tales.
A locomotive engine runs down a horse and kills it, and nobody sees the act but the man in the cab--the last of all men to do so of a purpose.
The act was not usual; it ought not to have been done; it was hurtful; it, therefore, might have been avoided; and ought to have been avoided; and could have been avoided only by the engineer.
Therefore, the doing of it was probably wrongful, and will be so regarded until the truth is established.
The rule is not singular, in the sense that it is only applied to what are termed live stock cases.
Moorer v. Atlantic C. L. R. Co., 103 S.C. 280, 282-283 (1916).
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