Yerushalmi Bava Kamma 5:1 ירושלמי בבא קמא ה׳:א׳

MISHNAH: A bull gored a cow and her fetus¹A dead fetus after a miscarriage. was found beside her. If it is not known whether she gave birth before she was gored²In that case, the owner of the bull would not have to pay for the miscarriage. or gave birth after she was gored, he pays half the damages for the cow³The normal amount for damage caused by a tame bull. and a quarter for the fetus⁴Since the owner of the cow cannot prove that the bull caused the miscarriage but neither can the owner of the bull prove that his animal did not cause it, and the bull’s attack on the cow is proved by two witnesses, the claim of damages for the fetus is “money in doubt” which is split evenly, cf. Ketubot 2:1, Note 9..
And similarly, if a cow gored an ox and her calf is found next to her, but it is not known whether she gave birth before or after she gored⁷If at the moment of her goring the calf was part of her body, it is available to be sold to cover the damages. But if it was born before the goring, it is not available to the owner of the bull. Therefore, the claim of the bull’s owner on the calf cannot exceed a quarter of its value., he pays half the damage from the cow and a quarter from the calf.

HALAKHAH: “A bull gored a cow”, etc. ⁵This is a slight reformulation of a passage in Ketubot 2:1, Notes 9–11. Do all cows have miscarriages? Should we follow the majority of cases? This implies that in criminal cases and in money matters one does not apply a majority argument. Rebbi Yose said, in another case they applied a majority argument in criminal cases and in money matters, as Rebbi Aḥa stated: ⁶Tosephta 3:6.“If a camel was in heat among camels and one finds one of them dead, I am saying that certainly the one in heat killed it.”

⁸In mss. and editio princeps, this paragraph is part of Halakhah 1. But it clearly refers to Mishnah 2. And Rebbi Yannai said, so is the Mishnah: He pays half of the damage from the cow and the owner of the calves returns a quarter to the owner of the cow⁹He refers the Mishnah to the case where the rancher sold the expected calf of his pregnant cow to a third party. The owner of the bull has to be indemnified by the cow’s owner alone, but the latter has regress on the calf’s owner up to a quarter of its value.
The Babli, 46b, has another approach: If the cow is available, he collects half his damages from the cow. If the cow is not available, he collects a quarter of his damages from the calf.. Rebbi Yose said, each of them gives half¹⁰He holds that the owner of the bull has to collect separately, first half of his claim of half the the damages up to a quarter of the calf’s value and then the remainder from the cow’s owner.. What is the difference between them? If the calves died. According to him who said, he pays half of the damage from the cow and a quarter of the damage from the calf, each one pays his part of the damage. According to him who said, he pays half of the damage from the cow and the owner of the calves returns a quarter to the owner of the cow, one pays the damage, but the other one says, I did not want these, here they are before you¹¹Even if the carcass of the calf is not worthless, he may return the dead bodies and claim his money back..

“And similarly, if a cow gored an ox,” etc. Rebbi Abun bar Cahana asked before Rebbi Immi: Because it is in doubt; therefore if it were certain, each one would give half¹²Why is the calf treated on an equal footing with the cow? Is not the calf here only an appendix to the cow?? Would I say that a foot of a person is the entire person? Each one would give half? He said to him, the Mishnah deals with a notorious animal¹³It is difficult to accept this reading since the Mishnah clearly speaks of half damages, but it is confirmed by all quotes of this paragraph in Medieval sources.. ¹⁴A similar text is in Tosephta ‘Arakhin 3:9,10.“Its foot is sold to you,” he sold half¹⁵The side to which the foot belongs.. “Its second foot is sold to you,” he sold half of the [remaining] half¹⁶Since he did not say that he was selling the other half, something is not sold. Therefore, sale of the unborn calf can be treated as sale of a quarter interest in the cow. If the cow were notorious, the owner of the calf would be liable as holder of a quarter interest in the cow.. Rebbi Simeon ben Laqish said, all these traditions are Levi’s¹⁷As the Babli points out, 46a, both Mishnaiot have to be rejected. Instead of an appeal to Symmachos’s principle that “one splits money in doubt”, one rules that “the burden of proof is on the claimant” and in the absence of witnesses the owner of the injured animal has no chance to prove any claim he might have on the calf. R. Simeon ben Laqish seems to attribute to Levi the acceptance of Symmachos’s rule in these cases..