85 So. 703 | Ala. | 1920
The appellant sued the appellee for damages for personal injuries sustained by him. The appellant was an employé of the appellee and was, when injured, being transported by truck from Taylor Field to the city of Montgomery. The truck was operated by the appellee's employé. It was carrying about 26 men, employés of the appellee. It was customary for the driver to stop the truck along the streets of Montgomery to permit the men to alight at such places as they notified the driver they desired to get off. The truck had a body with sides, on which rested planks for seats. Taking the appellant's theory of the circumstances *355 attending his injury, and ignoring for the occasion evidence contradicting material features of it, he notified the driver to let him off at the corner of McDonough street on Madison avenue; the truck being then "coasting" down Madison toward the McDonough street intersection. Preparatory to alighting at that intersection, appellant left his seat and supported himself by putting his feet outside the body of the truck on a brace. He was in this situation when the driver let in the "clutch," in consequence of which the moving truck was given such a sudden jerk as to throw appellant from his footing on the outside of the body of the truck and inflicted injuries of which he complains.
It appears that the court erroneously supposed that the plaintiff had the burden of proving the incorporation of the defendant. The pleas were the general issue and of contributory negligence. Where the complaint and such pleas tender the only issues triable, there is no obligation on the plaintiff to prove the corporate character of the defendant, even though that is the allegation. Sou. Ry. Co. v. Hundley,
The judgment is affirmed.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.