48 So. 509 | Ala. | 1909
The defendant is named in the caption of the complaint as “Mobile Light & Railroad Company, a corporation.” The complaint is for the recovery of damages for the negligent-killing of plaintiff’s mule. In it is averred .that “defendant, being then and there a corporation doing business as a street railroad company, -and operating a street railroad in the city of Mobile, * * did through- its agents and servants so negligently and carelessly operate one of its electric street .cars on its street railroad track in the city of’ Mobile -aforesaid,” etc. On the authority of McGhee v. Cashin, 330 Ala. 561, 568, 30 South. 367, it must be held the bui?;den was upon the plaintiff to offer some proof tending to support the allegation that defendant operated the car on its street railroad that killed plaintiff’s mule. If- the evidence afforded no reasonable inference of this fact, then the ruling of the court in excluding the testimony introduced in plaintiff’s behalf and the giving of the affirmative instruction requested by defendant was correct, and the new trial .should not have,been ordered. On the other hand, if by any reasonable and fair. Construction of the testimony it could be found'by the jury that the. defendant, was' operating the "car on -its road
On this point the plaintiff as a witness testified: “That he had a mule killed '"' * * on Eslave street, * * * in the city of Mobile. The railroad track runs on that street. That it was the track of the Mobile Light & Kail way. That they operated cars down that street.” It will be observed that, had the witness employed the word “railroad,” instead of “railway,” it could hardly be contended that the jury would not be authorized to find that it ivas the defendant that ivas operating the car on its road at the point where the mule was killed/ The tivo words “railroad” and “railway”.; have ■ substantially the same meaning, and in common parlance are understood as meaning the same thing. A railway is certainly a railroad. Indeed, the words may be said to be synonymous. Suppose an amendment of the complaint had been allowed, striking out the -word “railroad” and inserting in lieu thereof “railway;” could it be said that it would have Avrought an entire change of the parties defendant?' Would not the court have the right to infer that it Avas the same corporation? We think so. — Savannah, A.mericus & Montgomery Railway v. Buford, 106 Ala. 303, 17 South. 395 and cases therein cited. If this be true, then certainly the jury would be' authorized to infer, from the testimony quoted, that it was the defendant that was operating the car on its road.
And this, in our opinion, is certainly true, in the absence of all testimony shoAving that there was another existing corporation of a similar name. If there be such a corporation, we cannot judicially know it. — Western Ry. of Ala. v. McCall, 89 Ala. 375, 7 South. 650. In that case it was said: “When they (corporations) are parties to litigation, they should be designated by their cor
Affirmed.
