61 So. 881 | Ala. | 1913
The Court of Appeals folloAved the case of Southern R. R. Co. v. Penney, 164 Ala. 188, 51 South. 392, as to the construction given section 5476 of the Code of 1907 as to the burden of proof. It is now insisted that this case is wrong, and is opposed by the case of Southern R. R. Co. v. Smith, 163 Ala. 174, 50 South. 390.
Section 5476 of the Code of 1907 is practically a re-adoption of the act of 1887, Avhich appeared in the margin of the Code of 1886, but which said act Avas not embraced in the Code of 1896, and which said Code contained a section practically the same as section 1147 of the Code of 1886. In other Avords, Avhen the Code of 1886 was adopted, section 1147, which changed its predecessor in the Code of 1876, Avas superseded by the act of 1887, and Avhich appeared upon the foot of page
There is a manifest distinction between section 5476 of the Code of 1907 (act of 1887) and section 3443 of the Code of 1896, and the ¡Smith Case, supra, incorrectly holds that there wás no material change, and that the burden of proof was on the railroad, under the present Code, only when injury occurred at a point covered by the three preceding sections. This court had heretofore drawn a very decided distinction between the act of 1887 and section 3443 of the Code of 1896. In the Harris and Davis Gases, supra, it was held that the act of 1887 placed the burden upon the railroad whether the injury was or was not at a point covered by the
Regardless of the wisdom of this statute, or the constitutional objections that may be urged against it,