Klunk v. Hocking Valley Railway Co.

Citations

• 74 Ohio St. (N.S.) 125

Syllabus

<p>Action against railway company by. locomotive fireman — For personal injury from defect in water gauge glass of locomotive — Burden of proof upon the plaintiff — To create presumption of negligence — Section 8865-21, Revised Statutes —Law of negligence — Law of evidence. •</p> <p>1. On the trial of an action against a railroad company brought by á locomotive fireman for a personal injury received by him in consequence of a defect in the water gauge- glass attached to the locomotive upon which he was employed, an instruction, that to overcome the effect of the prima facie evidence of negligence arising from proof of such defect, “the defendant company is required to satisfy the jury by a preponderance of the evidence that it was not negligent,” is erroneous.</p> <p>2. In such action the burden of proving, by a preponderance of the evidence, the particular negligence alleged, is at all times upon the plaintiff, and while proof of facts sufficient under the statute, (section 3365-21), to create a prima facie presumption of negligence against the defendant casts upon it the burden of producing evidence of equal weight or countervailing force, in order to control or destroy such presumption, yet proof of such facts does not impose upon the defendant the burden of establishing affirmatively, by a preponderance of the evidence, that it was not negligent.</p> <p>3. The rule is that he who affirms must prove, and when the whole of the evidence upon the issue involved leaves the case in equipoise, the party affirming must fail.</p>