Summary
In Louisville N. R. Co. v. Martin, 223 Ala. 410, 137 So. 25, and Louisville N. R. Co. v. Green, 222 Ala. 557, 133 So. 294, the constitutionality of the progenitor of Section 273, supra, was upheld by our Supreme Court.
Summary of this case from Atlantic Coast Line Railroad Co. v. SmithOpinion
6 Div. 945.
October 15, 1931.
Appeal from Circuit Court, Jefferson County, Bessemer Division; Gardner Goodwyn, Judge.
Huey, Welch Stone, of Bessemer, for appellant.
The burden of proof was upon plaintiff to establish negligence on the part of defendant's servants or agents while acting within the line and scope of their employment in the operation of one of defendant's trains, which killed plaintiff's dog. Western A. R. R. v. Henderson, 279 U.S. 639, 49 S.Ct. 445, 73 L.Ed. 884; Manley v. State of Georgia, 279 U.S. 1, 49 S.Ct. 215, 73 L.Ed. 575; McFarland v. American Sugar Ref. Co., 241 U.S. 79, 36 S.Ct. 498, 60 L.Ed. 899; Bailey v. Alabama, 219 U.S. 219, 31 S.Ct. 145, 55 L.Ed. 191. A statute creating a presumption that is arbitrary or operates to deny a fair opportunity to repel it, or which makes that a fact which is not in truth a fact, is unconstitutional and void. Authorities, supra; 14th Amendment to U.S. Const.
Ross, Bumgardner, Ross Ross, of Bessemer, for appellee.
Section 9955 simply means that, when injury is shown to have been done by the railroad company, the plaintiff makes out a prima facie case, and then the burden of proof is shifted to the railroad company to introduce evidence to overcome such prima facie case, and, by showing a compliance with sections 9952, 9953, and 9954, or by other evidence, it may relieve itself of negligence. Section 9955 is valid. Mobile, J. K. C. R. Co. v. Turnipseed, 219 U.S. 35, 31 S.Ct. 136, 55 L.Ed. 78, 32 L.R.A. (N.S.) 226, Ann. Cas. 1912A, 463; Louisville N. R. Co. v. Green, 222 Ala. 557, 133 So. 294.
Action by the plaintiff against the defendant for damages for negligently killing a dog. The case was tried by the judge of the circuit court without a jury, and there was judgment for the plaintiff and damages assessed at $50.
There was ample evidence to justify the trial court in finding that the plaintiff's dog was run over and killed by one of the defendant's trains, and, when this was done, the plaintiff made out a prima facie case, and the burden was placed under section 9955 of the Code of 1923 upon the defendant to acquit itself of negligence, and which it made no attempt to do, and the trial court was justified in rendering a judgment for the plaintiff.
The main contention for a reversal of this case is based upon the unconstitutionality of said section 9955 of the Code. Indeed, as stated in brief of appellant's counsel: "In our opinion the most vital question presented in this case is the constitutionality of section 9955 of the 1923 Code of Alabama." It is sufficient to say that this question was settled against the appellant's contention in the case of L. N. R. R. Co. v. Green, 222 Ala. 557, 133 So. 294, and we have no inclination to depart from said holding.
The trial court committed no reversible error in the rulings upon the evidence.
The judgment of the circuit court is affirmed.
Affirmed.
THOMAS, BROWN, and FOSTER, JJ., concur.