Illinois Central Railroad v. Bottoms , 1 Ala. App. 302 ( 1911 )

WALKER, P. J.

Under the first count of the amended complaint, upon which alone the case went to the jury, the plaintiff did not assume the burden of proving actual participation by the defendant corporation itself in killing plaintiff's mule. The averment is that the defendant negligently ran or operated the train. Such an averment does not imply intentional causation, and may be supported by proof of negligence which is attributable to the defendant.—City Delivery Co. v. Henry, 139 Ala. 161, 166, 34 South. 389.

An averment of negligence on the part of a defendant corporation may be supported by proof of negligence of its servant in the line of his employment.—Kansas City, Memphis & Birminghaon R. R. Co. v. Sanders, 98 Ala. 293, 13 South. 57; Kansas City, M. & B. R. R. Co. v. Phillips, 98 Ala. 159, 167, 13 South. 65. The defendant was not entitled to the affirmative charge requested by it, because of the absence of evidence that the defendant corporation itself actually participated in the hilling of the animal.

The evidence as to how the mule came to its death was wholly circumstantial; yet some of the evidence on the subject afforded ground for an inference by the jury that the mule was injured by the train, and that its death resulted from the injury. But the evidence on this issue was in conflict. There was evidence which would have warranted a different inference. The question was one for the jury.

Proof that tbe injury was inflicted by the defendant was an essential part of plaintiff’s case. Proof to that effect must be forthcoming, before properly it could he said that there was evidence making out a prima facie case, or before the burden of proof provided for by the statute (Code 1907, §5476) was cast on the defendant.—Western Ry. of Ala. v. McPherson, 146 Ala. 427, 40 South. 934; Ala. Great Southern Railroad Co. v. Boyd, 124 Ala. 525, 27 South. 408. Under the part of the trial court’s oral charge to which an exception was reserved, the jury Avould have been warranted in finding that the plaintiff had made out his case, without any proof at all that the injury was inflicted by the defendant. This consideration, without looking further, discloses material error in that instruction. .

Reversed and remanded.