South & North Ala. R. R. v. Bees

82 Ala. 340

Opinion

STONE, C. J.

— 1. There is nothing in the objection urged, that the amendment, substituting the word mare for the word horse, made a new case, so as to let in the defense of non-presentation within six months. — Code of 1876, §§ 1711-14. Horse is a generic term, and includes mare. Bouv. Law Dict.; Lunsford v. State, 1 Tex. Ct. App. 448; Baldwin v. People, 1 Scam. 304; Wade v. Juda, 2 Car. & Payne, 351.

2. Nor need we consider any of the rulings on the question of the presentation of the claim within six, months after the injury was suffered. The suit was brought in less than six months, and that, of itself, was a written complaint preferred. — S. & N. Ala. R. R. Co. v. Morris, 65 Ala. 193; East Tenn., V. & G. R. R. Co. v. Bayliss, 74 Ala. 150. Rulings on this question, if erroneous, would be harmless.

3. When the plaintiff proved that his mare had been killed by the train of defendant, the burden was then cast on the railroad company of showing that it had employed that measure of diligence which the law exacts of railroad companies, and that the injury was not caused by its failure to, do so ; or, it must show that the injury could not have been averted by the employment of such diligence. Injury being proved, and no explanatory or exculpatory testimony being offered, the case is left with the burden unlifted, and the fault is imputed to the railioad company. — Ala. G. S. R. R. Co. v. McAlpine, 75 Ala. 113; East Tenn., V. & G. R. R. Co. v. Bayliss, 77 Ala. 429. The charges asked by appellant were properly refused.

Affirmed.