East Tennessee, V. & G.R. Co. v. Watson

• Decision Date: 08 May 1890
• Citation: 7 So. 813,90 Ala. 41
• Court: Alabama Supreme Court
• Parties: EAST TENNESSEE, V. & G. R. CO. v. WATSON.

7 So. 813

90 Ala. 41

EAST TENNESSEE, V. & G. R. CO. v. WATSON.

Supreme Court of Alabama

May 8, 1890

Appeal from circuit court, Cherokee county; JOHN B. TALLY, Judge.

Action against the railroad company for the killing of a colt. Negligence is averred in each count, in substance, as follows: "Because of the negligence or want of skill of the defendant's servants in the management and running of said train," it ran over and killed a colt. The company appeals.

SOMERVILLE J.

1. The averment 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. Railway Co. v. Lazarus, 88 Ala 453, 6 South. Rep. 877; Sistrunk's Case, 85 Ala. 352, 5 South. Rep. 79; Railway Co. v. Crenshaw, 65 Ala 566; Railroad Co. v. Thompson, 62 Ala. 494.

2. The motion of defendant to strike from the file the cross-interrogatories filed by the plaintiff on taking the deposition of Thomas, a witness for defendant, was properly overruled. The ground assigned for this motion was that this paper was not filed within 10 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 10 days from the time the notice is served. Code, 1886, § 2803. If it does not issue until the cross-interrogatories are filed, and this period extends over 10 days, this, in our opinion, is no ground upon which the deposition can be assailed for irregularity in the taking of it.

3. It was competent to prove that the right of way of the railroad was cut or cleared off for 100 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 competent, 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, Exp 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 cannot, 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 handwriting, 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 cannot 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...