Collins Baking Co. v. Savage , 227 Ala. 408 ( 1933 )

On Rehearing. We are taken to task for in effect changing the rule as to the burden of proof and of overruling certain cases set out in the brief on application for rehearing. We disclaim any such idea or intention. It may be that, after stating that the facts hypothesized made out a prima facie case of negligence, the further statement, "It was incumbent upon the defendant to acquit itself of negligence," was inaccurate, and the opinion should have more properly said, "It was then incumbent upon the defendant to go forward and answer the prima facie case or it would prevail." The burden of proof was on the plaintiff throughout, but the plaintiff met the burden when making out a prima facie case which was not sufficiently answered or met by the defendant's answer. Birmingham Trust Savings Co. v. Acacia Mut. Life Ass'n, 221 Ala. 561, 130 So. 327. We think that the defendant's evidence, not only failed to answer the prima facie case, but disclosed facts from which the jury could infer negligence in the manufacture of the bread, that is, a failure to use proper precaution as to an examination of the ingredients other than flour.

The application is overruled.