Rutherford v. Foster

Citations

• 125 F. 187
• 60 C.C.A. 129
• 1903 U.S. App. LEXIS 4158

Syllabus

<p>1. Wrongful Death—Lord Campbell’s Act—Burden to Show Act Causing Death Wrongful.</p> <p>In an action for damages resulting from a death caused by the wrongful act of another, under Lord Campbell’s act, the burden is on the plaintiff in the first instance to show that the act which caused the death was wrongful.</p> <p>2. Same—Evidence.</p> <p>But the wrongfulness of the act is not determinable by the opinions of the parties to the action, but by the law applicable to the act and to the facts and circumstances which conditioned its performance. Some acts are wrongful in themselves. The wrongfulness of others results from the circumstances under which they were committed.</p> <p>8. Same—Pleading.</p> <p>A denial in a pleading that an act was unlawfully and wrongfully done is futile. Such a denial admits that the act was done, and presents no issue of fact.</p> <p>4. Same—Presumptions.</p> <p>A legal presumption arises, from an assault and battery of a man by another with a deadly weapon, that the act was wrongful; and when such an act is admitted or proved the burden is on the defendant to show by a fair preponderance of evidence facts and circumstances in justification or mitigation of it.</p> <p>6. Same.</p> <p>A legal presumption arises, from the killing of one human being by another, that the act was wrongful; and when the killing is admitted or proved the burden is on the defendant to establish by a fair preponderance of evidence facts and circumstances in justification or mitigation of it.</p> <p>6. Same—Evidence.</p> <p>At the close of the evidence produced by the plaintiffs in an action under Lord Campbell’s act the pleadings admitted and the testimony proved that the deceased was killed by blows upon his head, inflicted by one of the defendants with an axe. The defendants then introduced evidence that these blows were struck to prevent the deceased, who had first assaulted one of the defendants, from killing him or inflicting serious bodily injury upon him