Alabama Great Southern Railroad v. Franklin

44 So. 373, 151 Ala. 376, 1907 Ala. LEXIS 533

• Court: Supreme Court of Alabama
• Decided: June 13, 1907
• Status: Published

Opinion

HARALSON, J.

The evidence for the plaintiff tended to show that the mule killed belonged to him, and also what its value was; that it was found dead on the track of defendant company, near mile post 35, in DeKalb county, and this ivas all the evidence for the plaintiff. There was no evidence, even, that the track was straight, where the mule 'was killed, nor to show that the place was at or near a public road crossing, the crossing of two railroads, a regular station or stopping place, or in a village, town or city, nor that it ivas within a quarter of a mile of any such place as specified in sections 3440, 3441, and 3442 of the Code of 3896. Formerly, prior to the Code of 1896, the onus as regulated by statute, ivas upon the railroad to acquit itself of negligence for killing stock, Avitliout regard to the place Avhere the injury occurred; but by later enactments, this rule as to burden of proof was changed. — Code 1886, § 1147; Code 1896, § 3443. Under these statutes — -the latter being but a reenactment of the former — it has been held by this court that, to cast the onus upon the defendant of disproving negligence, the plaintiff must have skoAvn not only that the defendant inflicted the injury, but that it occurred at or near one of the places specified in said sections 3440, 3441, and 3442 of the Code of 1896. This proof, as has been stated, was not made by the plaintiff. — Ala. G. S. R. Co. v. Boyd, 124 Ala. 525, 27 South. 408; Western R. Co. v. McPherson, 146 Ala. 427, 40 South. 934.

There was no evidence that defendant was guilty of any negligence whatever.

Under these conditions, the court committed error in not giving the affirmative charge as requested for defendant.

Reversed and remanded.

Tyson, C. J., and Dowdell and Anderson, JJ., concur.