STRICKLAND v. JACKSON, 205 Ala. 55 (1920)

87 So. 576

STRICKLAND v. JACKSON.

8 Div. 278.Supreme Court of Alabama.
November 25, 1920.

Appeal from Circuit Court, Franklin County; Charles P. Almon, Judge.

William L. Chenault, of Russellville, for appellant.

The complaint was demurrable. 90 Ala. 372, 7 So. 923. The proof did not come up to show want of ordinary care or lack of skill on the part of defendant, and the court erred in the judgment rendered. 165 Ala. 521, 51 So. 835; 166 Ala. 630, 52 So. 57, 139 Am. St. Rep. 59; 19 N.W. 961; 114 Ark. 300, 169 S.W. 967.

Travis Williams, of Russellville, for appellee.

No brief came to the reporter.

SAYRE, J.

Appellee sued appellant, alleging that appellant had been guilty of negligence when causing his horse to serve appellee’s mare for hire, with result that the mare was injured and died. Upon appellee rested the burden of proving that the injury

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to his mare did result from appellant’s lack of ordinary care in managing and controlling the horse in the process of service. Jones v. Darden, 90 Ala. 372, 17 So. 923. The cause having been tried by the court without a jury, the judgment rendered is supported by all the intendments which are indulged to sustain a judgment founded upon the verdict of a jury. Nevertheless, this court, upon due consideration, is of opinion that, not only did the appellee fail to sustain the burden of proof put upon him by the law, but that the great weight of the evidence went to prove that appellant did exercise ordinary care, and therefore that the judgment should be reversed, and a judgment for defendant rendered here.

Reversed and rendered.

ANDERSON, C. J., and GARDNER and BROWN, JJ., concur.