Louisville N. R. Co. v. Kinney

BROWN, J.

All questions presented in this case are disposed of contrary to appellant’s contention in the companion case, L. & N. R. Co. v. E. C. Kinney, 127 So. 802 , 1

except the question presented by the refusal of charge 17, requested by the defendant. This charge is in the following language: “I charge you that the burden is on the plaintiff to show or prove that the L. & N. Railroad Company failed to deliver the mules within a reasonable time.”

The gravamen of count 2 of the complaint on which the case was tried “is the negligent failure of the defendant to deliver the mules within a reasonable time.” L. & N. R. Co. v. E. C. Kinney, supra.

While it appears there has been a looseness of expression in the decisions in respect to •the burden of proof, where the gravamen of the action is negligent delay, the more recent cases are clear to the proposition that the plaintiff has this burden, but meets it and makes a prima facie case by showing either loss or injury in transit, and shifts the burden to the carrier of going forward with the evidence and acquitting itself of negligence. H. J. Crenshaw & Co. v. Seaboard Air Line Ry. Co., 219 Ala. 206 , 121 So. 736 .

The refused charge is sound in principle hut is bad in form. It uses the terms “show or prove” for “reasonably satisfy,” and was refused without error. Southern Express Co. et al. v. Roseman, 206 Ala. 681 , 91 So. 612 ; Sovereign Camp W. O. W. v. Gay, 217 Ala. 543 , 117 So. 78 .

Moreover, the rule of law asserted was covered, substantially, by the oral charge of the court.

The record appears to he free from reversible error.

Affirmed.

ANDERSON, C. J., and SAYRE and THOMAS, JJ., concur.

1

Ante, p. 48.