BRICKEN, Presiding Judge.
Appellee brought suit against appellant for the alleged negligent killing of a mule, the property of appellee, on or about the 9th day of November, 1933, in Sumter county, Ala.
The evidence, without dispute or conflict, disclosed that the mule in question was found dead near the tracks of appellant on the morning of the 10th day of November, 1933, in the town of Cuba; and the testimony is likewise without dispute or conflict, to the effect that said mule was killed by the fast moving train of appellant at the time and place mentioned. Under the evidence, therefore, the appellant was under the burden to show that there was no negligence on the part of the railroad company, or its agents, in this connection.
We have read and carefully considered the evidence in this case and are clear to the conclusion that a jury question was presented. The trial court, therefore, committed no error in refusing the general affirmative charge to defendant; nor in overruling its motion for a new trial.
The judgment of the lower court from which this appeal was taken will stand affirmed.
Affirmed.