127 So. 804 | Ala. | 1930
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,
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.,
The refused charge is sound in principle but 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,
Moreover, the rule of law asserted was covered, substantially, by the oral charge of the court.
The record appears to be free from reversible error.
Affirmed.
ANDERSON, C. J., and SAYRE and THOMAS, JJ., concur.