The appellant insists that the burden of proof was on the plaintiff under counts 2 and 3 to offer some evidence tending to show unreasonable delay in delivering the hogs to the consignee by the carrier; that the undisputed evidence that the hogs were received by the carrier in good condition, and 10 of them were delivered dead to the consignee by the carrier, would not shift the burden of proof as to unreasonable delay in delivering them under these counts; and that the court erred in giving the written charge on this subject. These counts (2 and 3) claims damages to the hogs for failure to deliver the hogs within a reasonable time to the consignee. Under these counts, when proof, undisputed, was offered showing the 10 hogs were received by the carrier in good condition and delivered to the consignee dead, then this made out a prima facie case, and the carrier, to relieve itself from liability under these counts, had the burden only of showing it delivered the hogs to the consignee within a reasonable time after it received them, or that unreasonable delay *Page 446 did not cause their death. These counts charge the misconduct or negligence of the defendant was unreasonable delay in delivering the hogs, and that was the cause of the injury to or death of them. They limit the negligence or misconduct of the defendant to unreasonable delay in delivering the hogs, and claim that was the proximate cause of their death.
Under count 1, which charges failure to deliver, when the proof undisputed showed the carrier received the 10 hogs in good condition, and delivered them dead to the consignee, then these facts made out a prima facie case, and the defendant, to acquit itself of liability thereunder, would have the burden of proving that the death of the hogs was caused by no negligence or misconduct on its part. This count did not specify what negligence or misconduct of defendant caused the death of the hogs; so it was necessary under this count for the defendant to prove the death of the hogs was not caused by any negligence or misconduct on its part in order to be relieved of liability. But counts 2 and 3 charged the negligence or misconduct of defendant was unreasonable delay that caused the death of the hogs, so under these counts it was only necessary for the defendant, to be relieved of liability, to show that there was no unreasonable delay in the delivery, or that the unreasonable delay was not the proximate cause of the death of the hogs.
This principle was clearly stated by Justice Walker in Steele Burgess v. Townsend, 37 Ala. 256, 79 Am. Dec. 49, as follows, for the court:
"Hence, a prima facie case of negligence is made out against the carrier, by showing that the goods were delivered to him, and that he has either not delivered them at all, or has delivered them in an injured condition."
Chief Justice Brickell, in S. N. Ala. R. Co. v. Henlein,52 Ala. 612, 23 Am. Rep. 578, wrote:
"When a loss or injury happens, the onus probandi rests on the carrier to exempt himself from liability; for the law imposes on him the obligation of safety. The owner or shipper is bound to prove no more than that the goods were delivered to the carrier, and the failure to deliver them safely. These facts are prima facie evidence of negligence or misconduct."
The undisputed evidence showed the 10 hogs were delivered to the defendant in good condition, and that the defendant delivered them dead to the consignee; these facts are prima facie evidence of misconduct or negligence of the defendant, and placed on the defendant the burden of showing their death was not caused by unreasonable delay under counts 2 and 3, and the burden of showing under count 1 that their death was caused by no negligence or misconduct of the defendant. This is supported and sustained by Justice Haralson, writing for the court, in L. N. R. R. Co. v. Smitha, 145 Ala. 686, 40 So. 117, headnote 1, and by Justice Clopton in Western Ry. Co. v. Harwell, 91 Ala. 340, headnote 4, 8 So. 649. See, also, Sou. Ry. v. N.W. Fruit Ex., post, p. 519, 98 So. 382.
It is true that Justice McClellan, writing for the court, in R. D. R. R. Co. v. Trousdale, 99 Ala. 389, headnote 4,13 So. 23, 42 Am. St. Rep. 69, in discussing a charge, in effect stated that, when the proof showed the animal was received in good condition, and was delivered in bad condition, and there was evidence of unreasonable delay, this would raise a prima facie presumption that the delay was negligent, and injuries resulted from it; but the court did not state that facts showing the carrier received the animal in good condition and delivered it to the consignee injured or dead would not make out a prima facie case of unreasonable delay in delivering the animal. This opinion of the court, through Justice McClellan, does not militate against the conclusion here reached.
The court did not err, under the evidence in this case, when it gave to the jury the written charge requested by the plaintiff, which is copied in the original opinion.
The application for rehearing is overruled.
ANDERSON, C. J., and GARDNER, J., concur in the opinion.
SAYRE and SOMERVILLE, JJ., think that the charge was erroneous as applicable to counts 2 and 3, but that on the whole case it was without prejudice to the defendant, and therefore concur in the result.
THOMAS and BOULDIN, JJ., hold the charge was not directed to any count of the complaint, and that it was correct as to count 1, and therefore concur in the result.