Ex parte Southern Ry. Co.

• Decision Date: 17 April 1913
• Citation: 181 Ala. 486,61 So. 881
• Parties: Ex parte SOUTHERN RY. CO.
• Court: Alabama Supreme Court

61 So. 881

181 Ala. 486

Ex parte SOUTHERN RY. CO.

Supreme Court of Alabama

April 17, 1913

Petition for certiorari by the Southern Railway Company. Petition denied.

Lawrence E. Brown, of Scottsboro, for petitioner.

Bouldin & Wimberly, of Scottsboro, opposed.

ANDERSON J.

The Court of Appeals followed the case of Southern R.R. Co v. Penney, 164 Ala. 188, 51 So. 392, as to the construction given section 5476 of the Code of 1907 as to the burden of proof. It is now insisted that this case is wrong and is opposed by the case of Southern R.R. Co. v Smith, 163 Ala. 174, 50 So. 390.

Section 5476 of the Code of 1907 is practically a readoption of the act of 1887, which appeared in the margin of the Code of 1886, but which said act was not embraced in the Code of 1896, and which said Code contained a section practically the same as section 1147 of the Code of 1886. In other words, when the Code of 1886 was adopted, section 1147, which changed its predecessor in the Code of 1876, was superseded by the act of 1887, and which appeared upon the foot of page 300, and which said act was the last expression on the subject when the Code of 1896 was adopted; but the codifier, instead of incorporating the act as section 3443 of the Code of 1896, reproduced section 1147 of the Code of 1886, which had been repealed by the act of 1887, and which was the condition of the statute when construed in the case of A.G.S.R.R. Co. v. Boyd, 124 Ala. 526, 27 So. 408. The codifier of the Code of 1907, made section 5476 conform to the act of 1887, and which was construed in the case of Birmingham Mineral Railroad Co. v. Harris, 98 Ala. 326, 13 So. 377, wherein the cases of Georgia Pacific R.R. Co. v. Hughes, 87 Ala. 610, 6 So. 413, and M. & E.R.R. Co. v Perryman, 91 Ala. 413, 8 So. 699, were expressly overruled. The Harris Case was followed in the case of L. & N.R.R. Co. v. Davis, 103 Ala. 661, 16 So. 10, and the act of 1887, as there construed, was placed in the present Code, and, presumably, the Legislature intended to change the statute as it appeared in the Code of 1896, and place the burden of proof on railroads of acquitting themselves of negligence for killing or injuring persons or stock, whether at places mentioned in the three preceding sections or not.

There is a manifest distinction between section 5476 of the Code of 1907 (act of 1887) and section 3443 of the Code of 1896, and the Smith Case, supra, incorrectly holds that there was no material change, and that the burden of proof was on the railroad, under the present Code, only when injury occurred at a point covered by the three preceding sections. This court had heretofore drawn a very decided distinction between the act of 1887 and section 3443 of the Code of 1896. In the Harris and Davis Cases, supra, it was held that the act of 1887 placed the burden upon the railroad whether the injury was or was not at a point covered by the three preceding sections, yet held in the Boyd Case, supra, that section 3443 of the Code of 1896 placed the burden of proof upon the railroad only as to points covered by the three preceding sections. The Legislature, presumptively aware of these interpretations, adopted the Code of 1907 with the act of 1887 reproduced as section 5476, and as construed in the Harris and Davis Cases, supra. Had no substantial change been intended, or if the Legislature meant to place the burden upon the railroads only at points covered by the three preceding sections, it would have readopted without change section 3443 of the Code of 1896, and which was construed in the Boyd Case, supra, as placing the burden upon the railroad only at points covered by the three preceding sections. In view of the history of this statute, and the different constructions placed upon same, as appearing in the act of 1887 and the Codes of 1876 and 1867, and in different language in the Code of 1896, it would do violence to the letter of section 5476 of the present Code, as well as the legislative intent, to hold that the change in the present Code from the section appearing in the Code of 1896 was immaterial and meant nothing. It may be true that the Penney Case, supra, dealt with stock, and that the Smith Case supra, dealt with a person; but the statute does not warrant a distinction between persons and stock in its application. The statute makes no distinction, and deals with persons and stock in the same language and...