Boland v. Louisville & Nashville Railroad

106 Ala. 641 | Ala. | 1894

BRICKELL, O. J.

— A witness generally must depose to facts within his knowledge, and cannot be permitted to testify upoix mere conjectxxre or belief, however stroxig; nor are lxis inferences or conclusions admissible evidence. Whether an inexperierxeed man, who had xiever been instructed, could have made the coupling of the eax-s, the first time attexnpted, the plaintiff was attempting to make when injured, was not a fact. It was the matter of deduction or inference from all the facts in evidence as to the character of the device or contrivance with which the cars were to be linked together, and the immediate circumstances under which the service of coupling was to be performed. These facts and circumstances were all proper for the consideration of the jury ; but if they had been grouped, what was the conclusion from them, a witness, expert or non-expert, could not declare.

Under the amended complaint, counting on the negligence of the engineer, it may have been permissible to prove that he backed the engine with unusual and unnecessary force. The fact proposed to be elicited by the inquiry, “At what rate of speed do cars ordinarily move in coupling?” is not prima facie relevant. Of necessity, the rate of speed at which cars ordinarily move in coupling, would vary with varying conditions and circumstances. The inquiry under the amended complaint was, whether under the conditions and circumstances, existing at the time and place the plaintiff was injured, there was negligence in driving back the engine with unnecessary and unusual force, causing the injury ; it was not at what rate of speed cars ordinarily move in coupling. In connection with other facts, it may be the evidence proposed to be elicited would have been relevant and material, but it was the duty of the plaintiff to have offered it in connection with such facts, if they existed. It has long been the settled rule, that where the relevancy of evidence is not apparent, but other facts may make it relevant, it is the duty of the party offering it to state its connection with the other facts, of which he proposes to make proof, that its relevancy may be disclosed to the court. — 1 Brick. Dig. 809, § 83.

We have examined with much of care and deliberation, the evidence as contained in the present bill of exceptions, comparing it with the evidence recited in the bill of exceptions when the case was before the court formerly. — L. & N. R. R. Co. v. Boland, 96 Ala. 625. There is no material change of the controlling facts on which the former decision and judgment was predicated. Notwithstanding the elaborate and able' argument of the counsel for the appellant, we are unwilling to depart from the former decision. It was re-affirmed in E. T., V. & G. R. R. Co. v. Turvaville, 97 Ala. 122; and though there may be found conflicting authorities, it seems to ns, it is supported by the weight of authority, and has its foundation in well defined and recognized principle. Whatever of peril the coupling of cars may have involved, ■and however much the peril may have increased, because of the difference in the character of couplings to be used from the couplings in general use on the cars of the appellee, with which the appellant was familiar, the peril was an incident of the service ; and the difference in the character of the couplings was patent, manifest to ordinary observation, inviting more of care in the use of them. If the open, plain and manifest character of the couplings was not warning or notice of increased peril, it is difficult to conceive of what avail verbal notice or warning would have been.

Let the judgment be affirmed.