126 Ala. 591 | Ala. | 1899
The first count was AvithdraAvn -by plaintiff, and the cause Avas tried on the second count, and on the third and fourth counts as amended.
The facts set up in the second and third pleas were not established, and there was no effort to do -so. No question is raised concerning them, and they are allowed to pass from consideration.
Refused charge 6 for defendant postulates that plaintiff must -show that the defendant failed to give to the dog food, water and exercise, or, any food, water and exercise, whereas, the count referred to—the 3d,— charge's that defendant failed to give the dog proper care and -attention in the matter of food, -water and exercise. If it he conceded that the burden was on plaintiff to prove the negligence of defendant averred, he
The 13th charge is subject to the same vices. Charge 12 asserts that plaintiff must prove, under the 1th count, that defendant failed to give the dog fond and water and exercise,—that is, that there was an entire failure to give food, water and exercise, whereas, plaintiff, under this count, was bound only to show a failure to give an adequate supply of 'food and ‘water. The failure to give the dog proper exercise on the trip is not counted on in this count.
Charge 15 was property refused. The matters there: in hypothesized did nót constitute a defense. The removal of the dog from the custody of the agent at Hickory Valley, in his absence, by the consignee, and his receipting for it in good condition and without objection, was not a conclusive defense against the plaintiff under any issue in the cause. It does not appear' that the consignee had, at tire time referred to, taken the dog from the crate and examined her. The further fact hypothesized, that after such receipt the dog developed disease from which she died, if true, would not imply that the supposed developed disease did not originate from seeds of disease sown from the negligence of defendant in the transportation of the dog, which the evidence abundantly tended to show. Indeed, the evidence shows without conflict that 'When delivered, and taken from the crate, the dog, within a short time afterwards, was in an injured and unhealthy condition; and there is an entire failure of evidence to show that the disease developed after the consignee receipted for her.
No error was shown in the rulings of the court below, •and its judgment is ‘affirmed.
Affirmed.