Miller-Brent Lumber Co. v. Ross

BRICKEN, P. J. Appellee brought suit against appellant to recover damages for five hogs that were killed and one hog that was injured by one of appellant’s log trains operated on a railroad in Covingtpn county. The evidence was in conflict as to the question vel non of appellant’s negligence in the operation of its train, and the general charge requested by appellant was properly refused. The hogs that were killed are designated as “meat hogs,” and the injured hog is referred to as an “O. I, C.” hog, or “a stock hog in smooth condition.” The injury sustained necessitated the performance of an operation that left the stock hog wholly unserviceable for breeding purposes. Some of the witnesses say, “He was worth nothing at all.” The following questions were propounded to a witness: “Now, those two meat hogs, what was their reasonable value on their feet there at that time?” “In your judgment, what would those three hogs have been worth?” “What was he worth after-wards?” referring to the hog that was “broken down in the loins.” Objection was made to each of these questions, and a motion made to exclude the answer to some of them. It also appears that, after 'the stock hog recovered from the impact, and the operation, he was killed for “a fattening hog.” Another witness had been allowed to testify without objection as to the value of the injured hog immediately after the injury, and there was no prejudicial error committed in overruling the objection to the question propounded to the witness Ross, as to “what was he worth afterwards?” Falkner v. State, 151 Ala. 77, 44 So. 409; Birmingham Paint & Roofing Co. v. Gillespie, 163 Ala. 408, 50 So. 1032. The only claim in the complaint respecting the injured hog is that the hog “was rendered useless as a stock hog.” The evidence without dispute shows- this allegation is true. There was no restoration of the hog as a stock hog. If he had any value otherwise . appellant should have shown it. *404 Evidence as to the value of the hogs ■that were killed just prior to the killing was admissible, and no error was committed by the court in overruling the objection to the questions above referred to tending to elicit ¡such information. Montgomery Street Ry. v. Hastings, 138 Ala. 432, 35 So. 412. The evidence of the witness Ross as to the estimate of the damage to the stock hog was in rebuttal, and contradictory to the •statement made by the witness Dannelly', and was properly allowed. The oral charge of the court correctly stated the measure of damages.- No error appearing, the judgment appealed from is affirmed. Affirmed.