Alabama G.S.R. Co. v. Moody

• Decision Date: 29 April 1891
• Citation: 92 Ala. 279,9 So. 238
• Parties: ALABAMA G. S. R. CO. v. MOODY.
• Court: Alabama Supreme Court

9 So. 238

92 Ala. 279

ALABAMA G. S. R. CO. v. MOODY.

Supreme Court of Alabama

April 29, 1891

Appeal from circuit court, Tuscaloosa county; S. H. SPROTT, Judge.

This suit was brought by the appellee, Frank S. Moody, against the appellant railroad corporation, and sought to recover damages for the killing of a Galloway bull, the property of the plaintiff, which was alleged to have been caused by the negligence of the defendant in running its locomotive and train of cars. The defendant pleaded the general issue, and issue was joined thereon. On the trial it was shown that the animal was killed by one of the defendant's trains at a point on its road at about 6:45 o'clock in the afternoon. It was undisputed that the defendant's schedule rate of speed on the portion of the road upon which the accident occurred was 22 miles per hour; that the train which killed the animal was running at a rate of 35 miles per hour; that a train running at that rate could not have been stopped in a less space than 300 yards; that the night of the accident was clear, dry, and dark; that the locomotive which killed the animal had on it a head-light which would not enable the engineer and fireman to see obstructions on the track further than 60 feet in front of the locomotive; that the animal was not in fact seen by the engineer or fireman until the locomotive was within 60 feet of him; and that when seen he was standing on the track. There was some evidence tending to show that a proper head-light when in good order would cast its light so that obstructions on the track would be visible at a much greater distance than 60 feet from the moving train. There was much conflicting testimony. The evidence of the witnesses Hammer and Bridges, to which objection and exception were reserved, is sufficiently shown in the first paragraph of the opinion. The witness Hollins testified that on one occasion "the engineers of the Alabama Great Southern Railroad blew their whistles at him in the years 1887 and 1888, when he was walking along said railroad track at least 300 yards ahead of the train." The defendant moved to exclude this testimony as irrelevant and illegal and duly excepted to the court's overruling this motion. The said witness Hollins and one Bridges, a witness testified that in their opinion a head-light to an engine would show such a light as would enable the engineer to see several hundred yards ahead of the engine. The defendant moved to exclude this testimony of both the witnesses, on the ground that they were not shown to be experts, nor shown to have had any experience as to the distance head-lights to an engine would throw their light. The plaintiff requested the following charges in writing, which the court gave, and to the giving of which the defendant separately excepted "(c) When the plaintiff shows that the defendant's train killed his bull, the burden of proof that the injury was the result of an unavoidable accident, or other matter acquitting the defendant of negligence, is cast on the defendant; and, unless the jury believe that the defendant has established the exculpating fact by preponderance of the evidence, the jury must find for the plaintiff. (d) Although the jury believes from the evidence that the engineer and fireman were at their posts and doing their duty, and although the jury may believe the testimony of the engineer that the head light in the locomotive that killed plaintiff's bull cast its light only 60 feet in front of the engine, yet if they believe from the evidence that a proper and good head-light, such as are in use on the best equipped railroads, would cast its light to a greater distance, and to such a distance as would aid the officers in charge of the train in avoiding accidents and injuries to stock, then the jury is authorized to infer that the head-light in said locomotive was defective; and unless it is shown that the defect, if they find it was defective, arose from some cause occurring in the course of travel, they are authorized to find the defendant guilty of negligence; and if they also believe that the negligence was the proximate cause of the injury to plaintiff's bull, they must find for the plaintiff." Plaintiff also asked the following charge: "(b) Even if the jury should believe that the bull was not seen at a distance at which the train could be brought to an actual stop, at the place where the bull was seen, nevertheless, if the animal could and ought to have been seen in time for the engineer to check up his speed and sound his whistle, they must find for the plaintiff." The court gave this charge, but with an explanatory charge, which is set out in the opinion, and the defendant duly excepted to the giving of the explanatory charge. The defendant requested the court to give the following charge in writing: "(1) The court charges the jury that, if they believe all the evidence in this case, they should find their verdict for the defendant." The court refused to give this charge, and the defendant duly excepted. There was judgment for the plaintiff, and the defendant now brings this appeal, and assigns the various rulings of the lower court as error.

Wood & Wood and J. J. Mayfield, for appellant.

F. S. Moody and J. M. Foster, for appellee.

CLOPTON J.

There is no error in refusing to exclude the evidence of Hammer and Bridges as to the value of the animal killed. The former had been and was superintendent of plaintiff's stock farm for several years, and the latter is a farmer engaged in raising and selling cattle, and had raised and sold some half-breed Galloway calves, the animal killed being a thoroughbred Galloway bull. Both of them knew the bull, his breed and peculiar merits. When the witness knows the property, no peculiar skill is requisite to qualify him to testify to its value; neither is it necessary that the opinion of the witness shall be based upon actual sales at the place. Though such sales are more reliable evidence of the market value, the witnesses may give their opinion, based upon general observation and experience and knowledge of the property and its intrinsic merits. Ward v. Reynolds, 32 Ala. 384; State v. Finch, 70 Iowa, 316, 30 N.W. 578; Cantling v. Railroad Co., 54 Mo. 385.

Neither is there error in refusing to exclude the evidence of Hollins and Bridges, which was introduced in rebuttal. The motion to exclude is based upon the grounds that the witnesses are not shown to be experts, and that the circumstances testified to by them, having occurred at other times than the killing of the animal, and having no connection with it, are irrelevant. While the rule requiring the evidence to be confined to the issue excludes all collateral facts not put in issue by the pleadings, and which are incapable of affording any reasonable inference or presumption as to the principal matter of controversy, it does not exclude any facts which shed light...