East Tenn., Va. & Ga. Railroad v. Watson

SOMERVILLE, J. 1. The averments of negligence on-the part of the defendant’s employes, from which the accident, of killing the colt is alleged to have occurred, and its connection with the result as a cause, are stated in each count of the complaint with sufficient certainty. The demurrer based on this, ground was properly overruled.—Western Railway of Ala. v. Lazarus, 88 Ala. 453; 6 So. Rep. 877; Sistrunk's Case, 85 Ala. 352; M. & M. Railway Co. v. Crenshaw, 65 Ala. 566; S. & N. Ala. Railroad Co. v. Thompson, 62 Ala. 494. 2. The motion of the defendant to strike from the file the cross-interrogatories filed by the plaintiff on taking the deposition of Thomas, a witness for the defendant, was properly overruled. The ground assigned for this motion was, that this, paper was not filed within ten days after notice served on the plaintiff of the filing of the direct interrogatories by the defendant. The statute, it is true, requires the filing to be done within this time, but the purpose is only to enable a commission to issue after the expiration of ten days from the time the notice is served. — Code, 1886, §2803. If it does notissue until the cross-interrogatories are filed, and this period extends over-ten days, this, in our opinion, is no ground upon which the deposition can be assailed for irregularity in the taking of it.. [44] 3. It was competent to prove that the right of way of the railroad was cut or cleared off for a hundred feet, more or less, between the depot and the place of the accident, as a fact bearing on the question of the engineer’s ability, by diligently looking out, to discover the animal, which was alleged to be near the track just before being injured. 4. The plaintiff testified that he was familiar with the value of stock, and, he was properly allowed to give his opinion as to the value of the horse in controversy, of which he was the owner. To render such testimony admissible, it was unnecessary that he should be shown to possess any peculiar «kill to qualify him as an expert on this subject.—Ward v. Reynolds, 32 Ala. 384; Burks v. Hubbard, 69 Ala. 379; Rawles v. James, 49 Ala. 183; Lawson on Expert Ev. 17, 456. 5. The general rule is, that witnesses must testify to facts, not to inferences, opinions or conclusions. Experts, or persons instructed by experience, are exceptions to this rule. They can not, however, as experts, give mere opinions as to matters of common knowledge, which persons of ordinary intelligence, including jurors themselves, are just as capable of comprehending as the witnesses.—Hammond v. Woodman, 66 Amer. Dec. 229, note. There are other exceptions to the. general rule also, as, for example, estimates of value, distance, ■time, quantity, and opinions as to hand-writing, general identity, and the like. “So, an opinion can be given by a non-■expert concerning matters with which he is specially acquainted, but which can not be specifically described.” — 7 Amer. & Eng. Enc. Law, 496. And, as expressed by Mr. Wharton, w an inference, necessarily involving certain facts, may be stated without the facts.” — 1 Whart. Ev. §510. This is often called •a conclusion or inference in the nature of a collective fact, involving cases where it is not practicable to lay before the jury the primary facts upon which the inference is based. Under these principles, it was competent for the plaintiff to testify that the animal killed was “ a very fine colt,” “fine stock,” “trotting stock”; that “it was sired by Clipper, a trotting horse at Cave Springs”; that “its mother was a fine blooded animal”; and other kindred expressions illustrating the qualities of the horse, including beauty of form and gracefulness of movement. 6. The court also, with equal propriety, excluded the inquiry propounded to the plaintiff, as to whether there might not have been a whistle sounded for the crossing, near which the accident occurred, without the witness hearing it. This is .a mere matter of opinion, and not the statement of a fact. [45] Marcott v. M. H. & O. R. R. Co., 8 Amer. & Eng. R. R. Cases, 306. 7. While it would be a matter of common knowledge, how far one coidd ordinarily see an object as large as a horse, and therefore not the subject of an opinion, the jury being as competent to judge of this fact as a witness; this inquiry assumed a different aspect when applied to the particular Ideality on the railroad track, or right of way going from the depot towards the scene of the injury. It may have been impracticable to lay before the jury all the details upon which such a collective fact was founded. The.soundness of the conclusion could be tested by the right of cross-examination. 8. Diagrams and maps illustrating the scene of a transaction and the relative location of objects, if proved to be correct, are always admissible, at the instance of either party, in order to enable the court and jury to more clearly understand and apply the facts in evidence.—Humes v. Bernstein, 72 Ala. 546; Moon v. State, 68 Ga. 687. The defendant having allowed his own witness to use a diagram in aid of his testimony before the jury, there could certainly be no objection to the plaintiffs counsel being permitted to use the same diagram in discussing the same witness’ testimony before the jury, although there had been no formal introduction of the paper in evidence. It might, nevertheless, be properly considered by implication as a part of the witness’ testimony, and, therefore, as in evidence. 9. The fourth and fifth charges requested by the defendant were based on the idea, that no duty would devolve on the engineer to blow the whistle, or ring the bell, unless the horse was actually on the track of the railroad. It is very true that the requirements of the statute (Code, 1886, §1144,) the violation of which is made a misdemeanor, do not absolutely originate or come into play until an obstruction on the trade is perceived.—East Tenn. Va. & Ga. R. R. Co. v. Bayliss, 77 Ala. 429. But railroad companies are liable for aiiy injury to persons or stock, or other property, resulting not only from a failure to comply with the statute, but from any other negligence on the part of the company. — Code, §3147. And there may be cases where the failure to ring the bell, or blow the whistle,, in order to frighten away stock in dangerous proximity to the track, would be negligence, although the animals might not be actually upon the track.—Sistrunk's Case, 85 Ala. 353; 5 So. Rep. 79; West. Railway of Ala. v. Lazarus, 88 Ala. 453; 6 So. Rep. 877. These charges, for this reason, were misleading, and were properly refused. [46] 10. The sixth charge was also properly refused, as misleading in tendency. The engineer may have been guilty of negligence in not keeping a diligent look-out for the animal killed, and this act of negligence may have been the proximate cause of the injury, although he may have been ever so diligent in avoiding the accident after he actually discovered the animal on the track. 11. There being no evidence tending to prove that the injury was willfully or intentionally perpetrated, the seventh charge, based on this assumption, was abstract, and its refusal was free from error. This charge is otherwise objectionable, on grounds unnecessary to be discussed. The other exceptions have been examined, and are considered to be without merit. The judgment must, accordingly, be affirmed.