Central of Georgia Ry. Co. v. Barnett

• Decision Date: 13 June 1907
• Parties: CENTRAL OF GEORGIA RY. CO. v. BARNETT.
• Court: Alabama Supreme Court

44 So. 392

151 Ala. 407

CENTRAL OF GEORGIA RY. CO. v. BARNETT.

Supreme Court of Alabama

June 13, 1907

Appeal from Circuit Court, Coosa County; S. L. Brewer, Judge.

Action by Fred Barnett against the Central of Georgia Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

This was an action for damages alleged to have been caused by a collision between a wagon and mules of plaintiff and a train of cars operated over defendant's line of railway. The facts tended to show that the plaintiff was driving along the road which crosses the track of appellant near Parkdale, in Coosa county. The train was going east towards Goodwater, and was a construction train. From the side track, where the train was first seen by the driver of the team, back to the railroad crossing at Parkdale, is about 620 yards. The house where plaintiff lived is about 360 yards from the same crossing. It was shown further that plaintiff saw the train about the time his team left home, or about 360 yards from where it was struck. It is also shown that the driver of the team stopped at a house about 125 yards from the railroad crossing, and looked and listened for the train, and saw no train from that point. It is further shown that the driver of the team made no other stop, and paid no special attention to see if the train was approaching after his stop at Swindle's house, about 125 yards from the crossing. The pleas were contributory negligence and failure to stop, look and listen.

George P. Harrison, for appellant.

George A. Sorrell, for appellee.

ANDERSON J.

The rule of evidence in permitting witnesses to give their opinion as to the value of property does not extend the right to testify as to the quantum of damages sustained. They can state the injuries, and even the value before and after the injury, and the damage would ordinarily be the difference but it seems, from the weight of authority, that the jury and not the witness, should ascertain the quantum of damages suffered. Montgomery & West Point R. R. v. Varner, 19 Ala. 185; Chandler v. Bush, 84 Ala. 102, 4 So 207; Krebs v. Brown, 108 Ala. 510, 18 So. 659, 54 Am. St. Rep. 188; Young v. Cureton, 87 Ala. 727, 6 So. 352. It is true the evidence in the case of Krebs v Brown, supra, was sanctioned by the court, because the witness stated that the destruction of the goods was total, and, as the damage was the value of the goods, the witness could testify as to the value and therefore the damage. The rule to which we adhere was laid down in the case of Montgomery & West Point R. R. v. Varner, supra, which has been frequently cited and approved, and is supported by some of the early text-writers, but does not meet with the approval of Mr. Wigmore in his valuable book on Evidence (section 1942); but he admits the weight of authority to be in favor of the rule of this court. The test generally of the damages is the difference in the value of the property before and after the injury, and to which facts a nonexpert witness may testify; and it looks rather technical to hold that he should not be permitted to make the mathematical subtraction and testify to the damage sustained, yet it might be that the witness, in fixing the value of the damages, would not do so on the legal basis of the difference in the value before and after the injury, and the safer rule is for him to detail the facts tending to deteriorate the value of the property and let the jury fix the quantum of damages. The trial court erred in...