68 So. 296 | Ala. | 1915
(1) The plaintiff received the car from the defendant to repair same gratuitously, and the proof shows that it was injured while he was riding in same for the purpose of ascertaining whether or not the repairs he undertook to make, and had made, were successful. If this was true, and which is not disputed, the trial trip was hut incidental to the repair, and the said trial trip Avas solely in the interest of and for the benefit of the defendant, the oAvner of the car; and plaintiff was, at the time of the collision and injury, still a bailee of the defendant, for his sole benefit, and without reward — a mandatory. This being the case, the plaintiff Avas obligated to the owner of the car only to the exercise of slight care, and was only liable for gross neglect or bad faith. — 5 Cyc. 186; Haynie v. Waring & Co., 29 Ala. 263.
(2) The evidence, however, having established the injury to the car while in the custody of the plaintiff, the burden of proof Avas upon him to show at least that degree of care on his part that the law required of him when the car Avas injured. He simply proved a collision, and from aught that appears it may have resulted solely from his fault and while not in the exercise of even slight care. He had the custody of the car, and was in same when it Avas injured, and should have shown enough facts connected Avith the collision as would have acquitted him of the failure to exercise that degree of care OAving the defendant. — Seals v. Edmondson, 71 Ala. 509.
The defendant having made out a. prima facie case against the plaintiff for the injury to his car, and which
The judgment of the city court is reversed, and the cause is remanded.
Reversed and remanded.