KVIDJSNCE. 043 



of proper care, it devolves upon the company to show such 

 want of proper care. ■*■*■* 



It has been held in a Georgia case that where the company 

 had the fireman in court, no inference was to be drawn 

 against it because it did not call him, as the plaintiff might 

 have done so;*^* but, ordinarily, the fireman should be called 

 to rebut the presumption of negligence. ''^^ The report of an 

 employee of the company as to the killing, if admissible as 

 evidence for the company, is not so unless it was his duty to 

 make such report and it was made contemporaneously; nor 

 should oral testimony be stricken out on the ground that the 

 report is better evidence.*^" 



Where the statute provided that, in case of injury, the body 

 of the animal should belong to the company, unless the owner 

 took the same in part payment of damages, the admission of 

 the company's agent that he had ordered the animal to be 

 killed and the beef to be sold for the company's benefit was 

 held to be privia facie an admission of negligence.**^ 



Evidence that other animals had been killed at the same 

 crossing is ordinarily inadmissible. "** But evidence to show 

 that other horses had been caught in the same way in the 

 crossing is admissible on the question of notice.*" 



The fact that the company had not exercised proper care 

 at other times and places is not admissible in evidence.**" 



'■" Gulf, C. & S. F. R. Co. V. Hudson, 77 Tex. 494. 



'" Davis V. Cent, R. Co., 75 Ga. 645, 



'" E, Tenn,, V, & G, R, Co, v. Culler, 75 Ga. 704. 



"' Jacksonville, T. & K, W, R, Co, v. Wellman, 26 Fla, 344- 



In Ohio & M, R, Co, v. Atteberry, 43 111. App. 80, the report of 

 section foreman to the company and his opinion as to the cause of the 

 injury were held not to be competent testimony. 



"• McCauley v. Mont. Cent. R. Co., 11 Mont. 483. 



'•■» Hudson V. Chic. & N. R. Co., 59 la- 58i: Croddy v. Chic, R, I,. & 

 P, R, Co,, 91 id, 598; North Chic, St, R, Co. v. Hudson, 44 HI. App. 60; 

 Ga, R, & Bkg, Co. v. Walker, 87 Ga, 204, 



**' Toledo, St. L. & K. C. R. Co. v. Milligan, 2 Ind. App. 578. 



"° Miss. Cent. R. Co. v. Miller, 40 Miss, 45, 



So, in an action for injuries caused by frightening a horse, evidence 



a 



