A Commentary On the Law of Evidence in Civil Issues By Francis Wharton volume

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A Commentary On the Law of Evidence in Civil Issues By Francis Wharton volume
Francis Wharton
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R. V. Richardson, U. S. Sup. Ct. , Oct. 7, 1875. In Maine, Chapman v. R. R. 37 Me. 92. In Maryland, Bait. & S. R. R. V. AVoodrufe, 4 Md. 242. In Illinois, Chic. & N. W. R. R. V. Mc- Cahill, 5G 111. 28. As to proof of prior firings to allect this burden, see supra, §42^ ^ See this point discussed in Whart. On Neg. §§ 871-2.
This argument, that the burden in such cases is on the plaintifTf, is ably presented by Holmes, J. , in Smith v. R. R. 37 Mo. 287: — " We cannot say that there was any eviden
...ce before the jury which tended to show actual negligence on the part of the defendant, and the plaintiff was not entitled to recover, unless the proposition can be maintained that from the mere fact that a fire was set by sparks from the engines, and dam- age done, ' the presumption is that said fire escaped by the negligence of the defendant or its agents. ' The in- struction seems to propound a conclu- sive presumption of laAv in reference to the issue, and a kind of disputable presumption of fact in reference to the matter of negligence.

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