[East Tenn., Va. & Ga. R. R. Co. v. Watson.] 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 skill 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 nonexpert 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, "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. [East Tenn., Va. & Ga. R. R. Co. v. Watson.] 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 could 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 locality 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 plaintiff's 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 track is perceived. East Tenn. Va. & Ga. R. R. Co. v. Bayliss, 77 Ala. 429. But railroad companies are liable for any 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, $1147. 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. [Ala. Great Southern Railroad Co. v. Moody.] 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. Ala. Great Southern Railroad Co. v. Aition for Damages, for Killing Cattle by Railroad Train. 1. Injuries to cattle by passing railroad train; evidence disproving negligence. In an action to recover damages for the killing of a cow by a passing railroad train, if the evidence shows, without any conflict, that the engineer of the train, on seeing several cattle on the track, sounded the cattle-alarm, and frightened them off, checking the speed of the train until they got down the embankment, where there was a wire fence thirty or forty feet distant; and that as the train again got under headway, one of the animals again ran up the embankment, fifty feet in front of the engine, and was run over and killed before the train could be checked, the presumption of negligence is rebutted, and the court may give the general charge in favor of the defendant, APPEAL from the Circuit Court of Tuskaloosa. Tried before the Hon. SAM. H. SPROTT. This action was brought by Frank S. Moody against the appellant corporation, to recover damages for the killing of a "Galloway cow" belonging to plaintiff, by the alleged negligence of the persons in charge of the defendant's passing train by which she was killed. The jury gave the plaintiff a verdict for $500. The only matter assigned as error is the refusal of the court to charge the jury, on request, that they must find for the defendant if they believed the evidence. [Ala. Great Southern Railroad Co. v. Moody.] WOOD & WOOD, for appellant. J. M. FOSTER, and F. S. MOODY, contra. CLOPTON, J.—The principles of law applicable to this case are few, and well settled. When an animal is discovered on the track of a railroad, the statute makes it the duty of the engineer to "use all the means within his power, known to skillful engineers, such as applying brakes and reversing the engine, in order to stop the train."-Code, § 1144. When the animal is discovered in dangerous proximity to the track, his duty depends upon the circumstances. If they are such as to indicate danger of its getting on the track, or to induce the supposition that it will attempt to cross, the usual means to frighten it away being unavailing, it becomes the duty of the engineer to arrest the motion of the train, if need be, or to check the speed so as to bring and keep it under control, until the animal has crossed, or the danger passed; but, if the circumstances do not indicate apparent danger of an attempt to get on the track, then the duty to check the train does not arise. In the latter case, if the animal suddenly and unexpectedly gets on the track, when the train is so near that the use of all the means within the power of the engineer could not avail to stop it in time to avoid injury, the omission to make the endeavor is not negligence, and the company is not liable for the ensuing injury. These principles have been so repeatedly and well settled by the decisions of this court, that a re-assertion will suffice without further consideration.-S. & N. Ala. R. R. Co. v. Jones, 56 Ala. 507; E. T., Va. & Ga. R. R. Co. v. Bayliss, 77 Ala. 429; A. G. S. R. R. Co. v. Chapman, 80 Ala. 615; Western Railway Co. v. Lazarus, 88 Ala. 453. Defendant's are the only witnesses who testify to the circumstances under which the cow was killed. If their evidence be true, the facts are these: As soon as the engineer and fireman discovered four or five cattle on the track, several hundred yards ahead of the engine, the engineer sounded the cattle-alarm, blew for brakes, and brought the train under control, nearly to a stop, before reaching the place where the cattle were, when they left the track, running down the embankment, which was from eight to ten feet high. After they had descended the embankment, the engineer started up the train, and was getting under way, when the cow that was killed suddenly ran up the embankment, and attempted to cross the road about fifty feet in front of the engine. As soon as she was discovered, the engineer again sounded the cattle-alarm, [Ala. Great Southern Railroad Co. v. Moody.] and blew for brakes; but the train was so near that it could not be stopped in time to prevent striking the cow. There was a wire fence on each side of the road, the one on the east from eight to ten feet, and the one on the west from thirty to forty feet from the embankment; and there were holes or pits from which dirt had been taken to construct the road. The cattle ran down on the west side. If these be the facts, the engineer, on discovering the cattle, used proper and sufficient means to get the train under control, so as to be able to stop it in time-due and reasonable diligence to avoid injuring the cattle, had they remained on the track. The evidence then presents the case of a cow, which, with other cattle, having been frightened, runs off the track down an embankment, and, on the train being started up, suddenly runs up the embankment and on the track, so near to the engine that a collision can not be prevented, and is killed in trying to cross. The circumstances were not such as would lead a prudent man to suppose or apprehend that the cow would at once ascend the embankment, and attempt to cross the road, or indicate apparent danger of her again getting on the track. If the injury occurred under the circumstances stated by the witnesses, it was unavoidable, and the company is not liable. The plaintiff's witnesses only testify to the killing and value of the cow, the part of her body which was struck, and the character of the track and adjacent ground; none of them witnessed the act. Plaintiff rested on making a prima facie case, casting on defendant the burden of proof to rebut the presumption of negligence arising from the fact that the cow was killed by one of its trains. We discover no substantial conflict in the evidence showing the circumstances of the killing; and if the witnesses be believed, the presumption of negligence is rebutted. The affirmative charge asked by defendant, the effect of which, in view of the entire evidence, would have been to instruct the jury that, if the facts be as testified by defendant's witnesses, the company was not liable, submitted their credibility to the jury, and should have been given.-Nashville, Chat. & St. Louis R. R. Co. v. Hembree, 85 Ala. 481. Reversed and remanded. VOL XC. |