Montgomery Light & Traction Co. v. Woods

McCLELLAN, J.— (1) The appellee was accorded a judgment against the appellant, a street railway company, for damages for negligently causing the death of appellee’s calf. Since the statutes affecting the burden of proof in cases where animals are injured or killed by locomotives or cars operated-on railroads in this state [330] have no application to street railways (Appel v. Selma Ry. Co., 177 Ala. 457, 59 South. 164), the unqualified burden of proof, unaided by any presumption, was on the plaintiff to affirmatively show negligence on the part of the defendant’s servants as the proximate cause of the death of the calf. (2) All the evidence, or any rationally possible inference from the evidence, shown by this record, is that the calf was probably killed by a street car. It neither invites nor authorizes any character of conclusion that the animal was killed by negligent act or omission of any operative of any street car of the defendant. If the case of Mobile Light & Ry. Co. v. Mackay, 163 Ala. 111, 50 South. 1035, is susceptible of an interpretation that would conclude to negligence as from mere proof of death inflicted by a street car, it must be attributed to a mistaken notion of the effect of the statute, section 5476 of the Code — a conclusion that has been rendered impossible by the correct construction of that section in the Appel Case, supra. (3) The judgment for the plaintiff was not justified by the evidence, and the court, trying the case without jury, erred in rendering the judgment it did. The judgment is therefore reversed, and one will be here rendered for the defendant. — Code, § 2890. Reversed and rendered. Anderson, C. J., and Sayre and Gardner, JJ., concur.