Frederick v. Louisville & Nashville Railroad , 133 Ala. 486 ( 1901 )

DOWDELL, J.

The case was tried by the court without the intervention of a jury, and a judgment was rendered in favor of the defendant. There are only two assignments of error, both of which relate to the judgment rendered. No exception was taken to the judgment in the court below, so far as the bill of exceptions shows, and the exceptions if any were taken and reserved should be shown by the bill of exceptions. This being so, there is nothing in the record upon which to base the assignment of error. It may be said, however, that the judgment appealed from was properly awarded under the pleadings upon the agreed statement of facts on which the case was tried.

The first count in the complaint declared against the appellee as a common carrier. Under the agreed statement of facts the liability, if any, of appellee vas that of warehouseman and not common carrier. — Ala. Gr. So. R. R. Co. v. Grabfelder & Co., 83 Ala. 200; Kennedy v. M. & G. R. R. Co., 74 Ala. 430; L. & N. R. R. Co. v. McGuire, 79 Ala. 396.

The second count, if it is good for any purpose, seeks a recovery against the defendant as a voluntary bailee. Under this count, the burden of proof was on the plaintiff to show negligence which was averred. The record does not show that any evidence was offered to support the averments of negligence.

We find no error in the record, and the judgment is affirmed.