McCLELLAN, J.

Of course, the judgment on the trial of right of property in the animals alleged to have been killed between Mrs. Gist and the present plaintiff is not conclusive against the latter’s title in the case at bar, the defendant here not having been a party to the former controversy. The testimony of the plaintiff as a witness in this case tended to show that he had title to the animals at the time they were killed through Gist’s surrender and delivery of them to him under and in satisfaction of the mortgage which the latter had executed upon them to secure payment of the purchase money. On this state of case, the affirmative charge requested by defendant on the idea that the evidence showed beyond controversy that plaintiff did not own the property was properly refused.

Plaintiff, moreover, had, while in possession of the animals under his forthcoming claim bond such special property in them as gave him a right to sue for their negligent destruction in consequence of which he was forced to pay their assessed value under the conditions of said bond; and that he had paid such value was *610proper to be proved as showing his damages in this aspect of the case. His testimony that the debt of the plaintiffs in the attachment suit, to the satisfaction of which the property had been condemned in bis hands had been paid, tended to show this damage, and it was properly admitted.

The question to witness J. M. Reynolds: “Was not thajt stock killed before the trial before the justice of the peace came off,” i. e. the claim suit, was answered favorably to the defendant if the fact in that regard could have exerted any influence on the issue here; and hence appellant can take nothing by his exception to the question.

Defendant’s special plea numbered 1 presented an entirely immaterial issue; but as plaintiff joined therein defendant was entitled to prove it and recover upon it if proved. The proposed testimony of the witness Cox to the rejection of which by the court exceptions were reserved was not competent on the issue thus made. His mere opinions or conclusions of fact that if he were required to run his engine so slowly that he could stop within the limits in which his head-light would enable him to see a horse on the track “lie would be unable to carry on the business of the company;” that such slow rate of speed “would increase the costs of carrying passengers and freight,” and such reduction in speed “would entail heavy loss on the company,” etc., etc., are not competent to prove even a had plea.

■Witness Cox could not and did not attempt to answer as to the time his train was due at Siluria. If the question was improper, therefore, its being propounded worked no injury to defendant.

The court had common knowledge of the time the sun set on the day under inquiry, and so the jury. There was no occasion therefore to introduce an almanac to show the hour.

We discover no infirmity in the charge given at the request of the plaintiff. There was evidence from which the jury might have inferred that the engineer could have seen the, animals on the track in time to have stopped short of striking them. If this were true it was bis duty to see them, and a failure to perform that duty was damnifying negligence.

There was no burden on the plaintiff to prove that the *611tracks testified to by one witness were made by tbe mare and colt or by the colt alone at tbe time of the killing. That may have been important evidence for the plaintiff ; but to say that the burden was on him to produce it is inapt, confusing and misleading.

The jury might Avell have been reasonably satisfied that the tracks Avere made by the animals killed or one of them, and still hai^e had a doubt on that point. Charge 8 of defendant’s series was therefore properly refused.

The action is for the negligent killing of two animals, a mare and a colt. Charge 4 Avould have required a verdict for defendant on disproof of negligence as to the mare, when on the evidence the circumstances attending the killing of the colt were not necessarily the same as those attending the killing of the mare.

We see no objection to the 5th charge requested by defendant. If both the animals came suddenly upon the track so close to the engine that the engineer could not stop in time to prevent running over them, their destruction cannot be ascribed to defendant’s negligence. For the error in refusing this charge the judgment must he rtwersed. The cause Avill he remanded.

Iteversed and remanded.