Alabama Great Southern R. R. v. Yarbrough , 83 Ala. 238 ( 1887 )

CLOPTON, J.

— It was specially pleaded, that plaintiff contributed to his own injury, in this, as is claimed, that he was wrongfully on the car of the defendant while it was being loaded with slag. To disprove this, the plaintiff was permitted to testify, that the conductor had previously informed him that he could stand on the car and pick the scrap-iron out of the slag, while it was being loaded. It is contended, that the evidence is illegal, by reason of the conductor’s want of authority to grant such permission. The conductor was an agent of the defendant corporation, having the control and management of the train, and charged with its operation. Being thus charged, his permission for the plaintiff to stand on the car is not outside of the scope of his authority, though he may have been guilty of a breach of duty, for which he is answerable to the company. A person, riding without paying fare, by permission of the conductor, is not a trespasser, though the train is not intended and operated for the carriage of passengers, and though the conductor has no authority to permit such person to ride. The plaintiff, as between himself and the defendant, was not a trespasser, nor wrongfully on the car, so as to constitute the 'act, in itself,' contributory negligence, if he was on the car by permission of the conductor, unless it was known to him that the conductor exceeded his authority. — Wilton v. Mid. R. R. Co., 107 Mass. 108; Gradin v. St. Paul & D. Railway Co., 11 Amer. & Eng. R. R. Cas. 644; 2 Wood’s Railway Law, § 298. For this purpose the evidence was admissible.

2. The general rule is, that the party injuring another by a wrongful act, is liable for all the direct injury consequent thereto, though it may not have been contemplated as the probable result. The loss or dimunition of capacity to follow one’s usual business or employment is a proper subject for compensation. The extent and nature of the business or employment of the plaintiff, and of his physical capacity to perform the work at the time he was injured, may be shown. One of the injuries suffered by plaintiff was the breaking of his arm. As tending to show the extent of the decrease of his capacity to work and pursue his employment, it was competent to prove that his other arm had been previously disablecl; .not as an element of recoverable damages, but to aid in estimating a fail’ and just compensation for tbe decreased capacity produced by tbe injury. But tbe evidence should be confined to tbe fact and extent of tbe previous disability, and not extended to a detail of tbe circumstances under wbicb it occurred. While tbe question propounded is proper, tbe answer of tbe witness is not responsive, and is otherwise objectionable. It does not state, except inferentially, tbe disability, its nature and extent. When, where and bow it occurred, are immaterial and irrelevant inquiries. Tbe answer should have been excluded, on tbe objection of tbe defendant.

3. Tbe car was loaded with slag, by means of a shovel operated by steam. Tbe defendant offered to prove by tbe witness Schwartz, who was operating tbe shovel, that after it bad started, and plaintiff bad placed himself under it, no human effort could have prevented tbe lever or bucket from swinging to its accustomed place. Tbe evidence was excluded. Tbe plaintiff bad previously testified, that be was standing in tbe end of tbe car wbicb bad been loaded, and, on seeing tbe lever swing around, be ran to tbe unloaded end of tbe car, when be was struck by tbe bucket suspended to tbe lever, and if be bad remained where be was, be would not have been struck by tbe bucket, but might have been by tbe lever. Tbe manifest purpose of tbe evidence is to show that, when plaintiff’s peril was discovered, tbe swinging of tbe lever could not have been prevented so as to avoid tbe injury. Tbe testimony is objected to, on tbe ground, that it is the opinion of tbe witness. Generally, a witness can testify only to facts, and mere opinion is not received, unless tbe witness is an expert, and it relates to a matter as to wbicb tbe jury are unable to draw correct inferences from tbe facts proved. But facts are frequently collective, and a combination of tbe known elements may be expressed in tbe form of conclusion or inference. Such inference is received, not as founded on tbe judgment of tbe witness, but as tbe result of bis personal observation and knowledge, and as “an equivalent to a specification of tbe facts,” because necessarily involved. Tbe evidence offered falls within this rule. It is not tbe statement of mere opinion, but of tbe result of personal observation and knowledge as to a collective fact, tbe witness being subject to cross-examination as to tbe simple facts so combined, and tbe sufficiency of bis knowledge. Pollock v. Gantt, 69 Ala. 373; Ware, Murphy & Co. v. Morgan, 67 Ala. 461; S. & N. Ala. R. R. Co. v. McLendon, 63 Ala. 266; 1 Whar. Ev., §§ 510-513.

The record does not show that exception was taken to the refusal of the court to give the several charges asked by the defendant. "We can not properly consider them.

Reversed and remanded.