640 LIABILITY lERESPECTIVE OP FENCING LAWS. 



lina,*2o South Dakota/^^ and Tennessee.^^a In all these 

 States the presumption is, of course, one that may be over- 

 come by evidence on behalf of the defendant. In Maryland 

 the statute was held not applicable where the team killed was 

 at the time under the control of a driver, but only where the 

 animals were straying or not under control when they were 

 injured.*^^ But in North Carolina the statutory presump- 

 tion of negligence was held not to be rebutted where the 

 animal was hitched to a wagon, but to apply as well where it 

 was under control as where it was running at large.*^* 



The South Carolina cases go further than the above cases 

 and hold that, quite apart from any statute, where a forcible 

 injury by the company is shown, the burden of disproving 

 negligence is on the defendant.*^^ This rule was followed 

 also in Wisconsin, though it was held not to apply where 

 there was no evidence that the cattle killed were lawfully on 

 the highway, as they were presumed to be unlawfully there.*^* 

 And in South Carolina the rule has been held not to apply 

 where the animal killed is a dog.*^^ 



"° Randall v. Richmond & D. R. Co., 107 N. C. 748. 



Otherwise, where the action is not brought within six months from the 

 time of killing: Jones v. No. Car. R. Co., 67 id. 122. 



•"' Bates V. Fremont, E. & M. V. R. Co., 4 S. D. 394; Keilbach v. Chic, 

 M. & St. P. R. Co. (S. D.), 78 N. W. Rep. 951. 



The Dakota statute was held to create no new liability but simply to 

 change the order of proof: Huber v. Chic, M. & St. P. R. Co., 6 Dak. 

 392. 



'^ Home V. Memphis & O. R. Co., i Coldw. (Tenn.) 72. 



"° Annapolis & B. S. L. R. Co. v. Pumphrey, 72 Md. 82. 



"* Randall v. Richmond & D. R. Co., 104 N. C. 410, 107 id. 748. Shep- 

 herd, J., dissenting, considered that the words "cattle and live stock" were 

 used exclusively as applicable to animals straying on the road-bed and 

 not under the direction and control of the owner. 



*" Danner v. So. Car. R. Co., 4 Rich. L. (S. C.) 329; Murray v. Same, 

 10 id. 227; Fuller v. Pt. Royal & A. R. Co., 24 S. C. 132; Walker v. 

 Columbia & G. R. Co., 25 id. 141; Joyner v. So. Car. R. Co., 26 id. 49; 

 Mack V. South Bound R. Co., 52 id. 323. 



"' Galpin v. Chic. & N. R. Co., 19 Wis. 604. 



"' Wilson V. Wil. & M. R. Co., 10 Rich. L. (S. C.) 52. And see Jemison 



