Evidence as

to condition of rails and

ties.

plaintiff was riding passed over it, and also that the rail gave way in consequence in part of the defective condition of the cross ties under it, and in part of the rail itself being old and worn. Plaintiff was allowed, against defendant's objection, to adduce evidence going to show that other rails and cross ties along there were also old, worn, rotten, decayed, etc. There was no error in this. It may well have been that other defective rails and cross ties in the immediate vicinity contributed to the breaking of the particular rail by imparting an irregular motion to the cars, and causing them to bear down with greater weight and force at the point where the track gave way. Moreover, all this evidence was competent as affording a stronger inference that defendant's employes knew of the perilous condition of the track, including that portion constituted of the broken rail and the ties beneath it, than would have been afforded by proof confined to the particular rail and ties. Railroad Co. v. Johnson, 15 Lea (Tenn.), 677. 8. The testimony of the witness Curley that "to the best of my judgment what we called in the short quarter,' where the rail was broken out, was on a rotten cross tie but I won't be positive," was but the statement of his best recollection about a fact, (that the rail broke on a rotten tie,) as to which he would not speak positively, and was properly received. Head 7. Shaver, 9 Ala. 791; Wright 2. Bolling, 27 Ala. 259; Elliott v. Dyche, 80 Ala. 376.

6

9. The action of the court in disallowing the question propounded by the defendant to its witness Dr. Gaston, “You have had many cases of obstetrics, have you?" may be justified upon the leading character of the question.

Degree of care

10. The law imposes upon common carriers the duty of exercising the highest degree of care, skill, and diligence in the transportation of passengers, and holds them responsible for the consequences of the slightest required of negligence resulting in injury to persons sustaining carriers. that relation to them. The first paragraph of the general charge to which exception was taken, which implies that the law requires "strict diligence" of such carriers is well within this principle. Searle's Adm'r. Kanawha & O. R. Co., 32 W. Va. 370, 37 Am. & Eng. R. Cas. 179; Louisville, N. A. & C. R. Co. v. Snider, 117 Ind. 435, 37 Ám. & Eng. R. Cas. 137; notes to Irelson v. Southern Pac. R. Co. (La.), 44 Am. & Eng. R. Cas. 319; Louisville & N. R. Co. v. Ritter, 85 Ky. 368, 28 Am. & Eng. R. Cas. 167; New York, L. E. & W. R. Co. v. Daugherty (Pa.), 6 Am. & Eng. R. Cas. 139; Philadelphia & R. R. Co. v. Anderson, 94 Pa. St. 351, 6 Am. & Eng. R. Cas. 407; Bedford, S. Q. & B. R. Co. v. Rainbolt, 99

Ind. 551, 21 Am. & Eng. R. Cas. 466; Topeka City R. Co. v. Higgs, 38 Kan. 375, 34 Am. & Eng. R. Cas. 529; Smith . St. Paul City R. Co. 32 Minn. 1, 16 Am. & Eng. R. Cas. 310; Dodge v. Boston & B. Steam Ship Co., 148 Mass. 207, 37 Am. & Eng. R. Cas. 67; Treadwell v. Whittier, So Cal. 575; Hutch. Car. 503, 799-801; Thomp. Car. 175 et seq.; 2 Am. & Eng. Ency. Law, p. 745; 2 Wood, Ry. Law, p. 1095; Louisville & N. R. Co. v. Jones, 83 Ala. 376, 34 Am. & Eng. R. Cas. 417; Georgia Pac. R. Co. v. Love (Ala.), 8 South. Rep. 714; Montgomery & E. R. Co. v. Mallette (Ala.), 9 South. Rep. 363. This high degree of care is imposed by the law as being reasonable in view of the relation existing between the carrier and his passenger; and it is in this sense that the term "reasonable care" must be taken to have been employed in Smith 7. Georgia Pac. R. Co., 88 Ala. 540, 41 Am. & Eng. R. Cas. 143.

accident.

II. In Mallette's Case, supra, we had occasion, immediately following the proposition just stated, and after citing the authorities there referred to, to announce the Presumption doctrine that under certain circumstances a preof negligence sumption of negligence on the part of the carrier from proof of arises from proof of an accident and consequent injury to a passenger. We there said: "The authorities present equal unanimity to the proposition that where a passenger receives injuries from the breaking down of the carrier's vehicle, from the derailment of a car from collisions, and the like occurrences, which would not ordinarily take place but for some negligence on the part of the carrier. the prima facie presumption is that the injury is the result of the carrier's negligence; and in an action therefor the plaintiff, having shown that he was a passenger, and that he was injured by the derailment, for instance, of the car in which he was being transported, he is, upon this, and without more, entitled to recover the damages thereby sustained, unless the defendant, in rebuttal of this prima facie presumption, reasonably satisfies the jury that the derailment was not due to any negligence, and could not have been prevented by the exercise of the highest degree of care, skill, and diligence on the part of the carrier.' Authorities supra; Thomp. Car. 181 et seq.; 2 Wood, Ry. Law, 1096, 2 Am. & Eng. Ency. Law. p. 768, et seq.; Railroad Co. v. Wightman, 29 Gratt. (Va.), 431: Central R. Co. v. Sanders, 73 Ga. 513, 27 Am. & Eng. R. Cas. 300; Hipsley v. Kansas City, St. J. & C. B. R. Co., 88 Mo. 348, 27 Am. & Eng. R. Cas. 287, and note; Baltimore & Y. Turnpike R. Co. v. Leonhardt, 66 Md. 70, 27 Am. & Eng. R. Cas. 194; Eureka Springs R. Co. v. Timmons, 51 Ark. 459, 40 Am. & Eng. R. Cas. 698, and note; Stokes v. Saltonstall,

13 Pet. (U. S.), 181; New Jersey R. & Transp. Co. v. Pollard, 22 Wall. (U. S.), 341; Louisville & N. R. Co. v. Jones, 83 Ala. 376, 34 Am. & Eng. R. Cas. 417; Georgia Pac. R. Co. v. Love (Ala.), 8 South. Rep. 714. The cases of Georgia Pac. R. Co. v. Hughes, 87 Ala. 610, 39 Am. & Eng. R. Cas. 674; and Louisville & N. R. Co. v. Reese, 85 Ala. 497, 38 Am. & Eng. R. Cas. 342, to which our attention has been invited in this connection, are not in point. The parties injured, and who were plaintiffs in those actions, were not passengers of the defendant companies; and the principles we have been considering had no application in either of them. Railway Co. v. Mallette, supra. The evidence in this record brings the present case strictly within this principle. The plaintiff was a passenger, being transported on a car of the defendant. The car was derailed; and she received the injuries of which she complains as a result of that derailment. The numerous authorities cited fully meet and overturn the position of counsel attempted to be based on the case of Georgia Pac. R. Co. v. Hughes, supra, and determine the exceptions reserved in this regard against the appellant.

12. Quite a number of medical and surgical experts were examined in this cause. The testimony of most of them consisted both of facts involved in the physical condi

-Charge ex

tion of the plaintiff subsequent to the accident and Instructions of opinions as to the causes of that condition, the consequences to flow from it, the feasibility and means of relief or amelioration of it, etc. Those paragraphs of the court's general charge with respect to the testimony of these experts to which exceptions were reserved had reference solely to this opinion evidence, and not to any fact testified to by them. The court instructed the jury that "the opinion of expert witnesses should not be substituted for such opinion as the jury may form from the whole facts and whole evidence in this case, and this opinion should be weighed along with all the other facts in the cause;" and that "in no case should the jury accept the opinion of an expert as true, unless it agrees with the conclusions as based upon the whole facts of the case; and such opinion should be considered in connection with all the other facts in making up the conclusion of the jury upon each fact it bears upon." These paragraphs of the general charge, relating to the same matter, must be construed together. It is the settled doctrine of this court" that the general charge given ex mero motu in the court below should be read and construed with regard to the connection between its several sentences and propositions, each declaration being shaded and interpreted in the light of its context; and, if any part, when so considered, lim

ited, or expanded, asserts the law correctly, it will not furnish ground for reversal, however faulty the particular clause might be, if its meaning was not controlled by prior or subsequent passages." Montgomery & E. R. Co. v. Stewart, 91 Ala., 8 South. Rep. 708; Williams v. State, 83 Ala. 68; O'Donnell v. Rodiger, 76 Ala. 222. Looking at each of these paragraphs in the light shed upon it by the other, and limiting and expanding the several propositions of each by the context of both, or, in other words, arriving at the meaning the trial court intended to convey from all that was said on the subject, as the jury must have done we evolve out of these paragraphs no more than this proposition; that, if the jury reach a given conclusion from a consideration of the whole evidence, including as well the opinions of the experts as substantive facts deposed to by witnesses, whether experts or non-experts, they are not to surrender this conclusion, which is their opinion upon the whole evidence, because the opinions of the experts do not coincide with theirs, but leads to a different result; or, to express the same thought in variant phraseology, the jury are not to substitute for their own views of what is established by the whole evidence, substantive and opinion, expert and non-expert, the opinion of expert witnesses, for to thus surrender their own conclusions, and substitute instead the conclusions of witnesses as to what was proved by the evidence, would be to make such witnesses, and not the jury at all, the triers of the cause. We do not think that either of the paragraphs excepted to is an instruction on the weight to be accorded the opinion evidence. To the contrary, each and both of them leave that question entirely an open one for the jury, and only confine such opinions to the legitimate office of all evidence-that of being. considered with every other fact and circumstance laid before the jury in arriving at their conception of the truth; thus guarding them against the error of allowing the expert opinion to be substituted for their own judgment. The exceptions reserved in this connection are untenable. Rog. Exp. Test. 37 et seq.; Lawson, Exp. Ev. p. 240; Brehm v. Great Western R. Co., 34 Barb., N. Y., 256; note to Hammond v. Woodman, 41 Me. 177, 66 Am. Dec. 230.

counsel.

13. That part of the closing argument of plaintiff's counsel to the court's rulings, in respect of which exceptions were reserved, appears to have been in reply to the arguArgument of ment of defendant's counsel, and to have been of the same general character. The opening sentences of the language complained of are: "I never did in my life, and I challenge the gentleman to name a lawsuit in which I have been engaged since I have been practicing law in the city of

Birmingham where I have done it, [abused men who are employes of railroads.] On the contrary, gentlemen, if I may be allowed to speak my sentiments as he [counsel for defendant] has been allowed to speak his, my sympathies are always with the employes of a railroad," etc. The fair inference from this language which went unchallenged, so far as the fact of its being responsive to defendant's counsel is concerned, is that if what followed was outside of the case, so also was the language of the opposing counsel in the same connection; and the refusal of the trial court to exclude the remarks objected to from the jury may well be justified on that ground alone. A party can have no just ground of complaint on account of remarks, improper in themselves, which have been necessitated by like remarks on the other side.

- Negligence

14. Charges 1, 2, and 3, requested by the defendant, and refused, being the general charge on the whole case, and upon the first and second counts, respectively, are not insisted on. Their refusal was palpably proper. Speed of train Charge No. 4 of defendant's series is as follows: "If -Evidencethe jury believe the evidence in this cause, they Instructions. must find their verdict for the defendant under the third count of the complaint." It is strenuously insisted that this charge should have been given. The argument in its support proceeds on the theory that this count charges negligence only in the running of the train at great speed, and that there is no evidence in the case tending to show negligence in the manner in which the train was run (moved) at the time and place of the accident, or that it was being run at great speed. This theory is not supported as to either of its postulates. The third count of the complaint not only alleges the negligent running of the train at a "rapid rate of speed," and that the rails at the point of derailment were old iron rails, worn, unsound, insecure, and unfit for use, and that the crossties on which said rails were laid were unsound, rotten, and insecure; but also "that said accident was caused by the gross negligence of said defendant in running its train at such a rate of speed over said rails, and [in addition to all this, and wholly irrespective of the running of the train, or the manner and rate of such running] by the gross negligence of said defendant in using and permitting to be used said old and worn iron rails and rotten and unsound crossties after they had become unfit for use on said road." Had the burden, beyond proof of derailment and consequent injury to a passenger, been on plaintiff to show negligence on the part of the defendant, she would have been entitled to recover on this count on proof that the derailment was caused by the defective condition of the track, and without any evidence