Nave v. Alabama G.S.R. Co.

• Decision Date: 22 June 1892
• Citation: 11 So. 391,96 Ala. 264
• Parties: NAVE v. ALABAMA G. S. R. CO.
• Court: Alabama Supreme Court

11 So. 391

96 Ala. 264

NAVE v. ALABAMA G. S. R. CO.

Supreme Court of Alabama

June 22, 1892

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

Action by J. A. Nave, administrator, against the Alabama Great Southern Railroad Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Aiken, Dartch & Martin, for appellant.

L A. Dobbs, for appellee.

COLEMAN J.

The present suit is by the plaintiff in his representative character as the administrator of the estate of Benjamin F Nave, deceased, and instituted to recover damages for the negligent killing of plaintiff's intestate. Issue was joined upon the first and third pleas of the defendant. The first presented the general issue, and the third set up as a defense contributory negligence, and denied that the death was "the result of any wanton, reckless, or intentional act done by the defendant." There are four assignments of error, and the questions raised by them will be considered in the order presented.

On his direct examination by plaintiff, the witness Lowry described the wounds found on the head of the deceased. On his cross-examination he was asked "if the wounds he had described to the jury could have been made if the deceased had been lying down between the ties." Against the objection of the plaintiff, the witness was permitted to testify "that said wounds could have been made if the deceased had been lying down." The evidence showed that the witness was not present at the time of the injury, but came to the place where the body was lying, and where the injury occurred, some time afterwards. The general rule is that a witness can testify only to facts. An exception, as well established as the general rule, lies in favor of what is known as "expert testimony." The record contains no evidence tending to establish that the witness was an expert in regard to the matter upon which he was permitted to give his opinion. The jury were just as competent as the witness to form an opinion from the description of the wound as to the position of the deceased when injured as the witness himself. It is the province and duty of the jury to draw inferences and conclusions from facts; and the conclusion or opinion of a witness, not within the exception to the general rule, is inadmissible to influence them in forming their conclusions. The admission of this evidence was erroneous, and must work a reversal of the case, unless it is affirmatively apparent that its admission was error without injury. The evidence tended to show that the deceased was 15 years old when he was killed. After introducing evidence tending to show the value of the services of the deceased, a witness was asked by plaintiff's counsel, "What would the services of deceased have been worth when he reached 21 years of age, if he had lived?" The court sustained an objection to this question, and this is assigned as error. The ruling of the court was clearly correct. The answer to such a question would be purely speculative opinion, based upon contingencies too remote and uncertain to furnish a basis for the admeasurement of damages.

The court gave the general affirmative charge for the defendant and this is assigned as error. This question involves an examination of the tendency of the testimony introduced in evidence, and which is claimed to support plaintiff's contention. The facts proven tend to show that deceased was a youth over 15 years of age; that he was in the employ of the defendant corporation as a flagman; that he was stationed on the road a mile or more south of where a "steel gang" was at work laying steel rails, and it was his duty to give the danger signals to north-bound trains, by displaying a red flag, which was the signal to stop the train; that the engine which inflicted the injury was running from north to south at the speed of 35 miles per hour; that the track was straight for more than a half mile before reaching the spot where deceased was struck, and that it gave no warning of its approach; that it was 10 or 11 o'clock A. M., and the view unobstructed; that between 8 and 9 A. M. deceased was seen standing on the track, and at that time the flagstaff with the red flag was standing between the rails on the track; that shortly after this time deceased was seen sitting...