| Ala. | Nov 15, 1889
1. It was competent for the witness, Dr. Sams, to give his opinion, as an expert, that the injuries of the plaintiff, Mrs. Patterson, were caused by a fall of some kind, but not by a fall from a mule or horse at a particular railroad crossing, as to the facts of which he neither knew, nor pretended to know any thing. The evidence bearing on this point was properly excluded.
2. The evidence tended to show that the injury complained of was received by reason of the plaintiff’s mule falling through a hole in a bridge. The habit of the animal for stumbling was a relevant fact, in view of the liability of such a vice to contribute to such an accident. The evidence bearing on this point was properly admitted, to throw light on the inquiry as to any alleged contributory negligence on the plaintiff’s part, which may have produced the injury. It is sufficiently obvious that the inquiry as to the “character” of the animal for stumbling had reference to habit, and was so understood by the witnesses.
3. The court properly charged the jury, that there could be no recovery of exemplary or vindictive damages by reason of any want of care on defendant’s part less than gross negligence.—South & North Ala. R. R. Co. v. McLendon, 63 Ala. 266" court="Ala." date_filed="1879-12-15" href="https://app.midpage.ai/document/south--north-ala-railroad-v-mclendon-6510430?utm_source=webapp" opinion_id="6510430">63 Ala. 266; Leinkauff v. Morris, 66 Ala. 406" court="Ala." date_filed="1880-12-15" href="https://app.midpage.ai/document/lienkauf--strauss-v-morris-6510766?utm_source=webapp" opinion_id="6510766">66 Ala. 406; West. Un. Tel. Co. v. Way, 83 Ala. 542" court="Ala." date_filed="1887-12-15" href="https://app.midpage.ai/document/western-union-telegraph-co-v-way-6513008?utm_source=webapp" opinion_id="6513008">83 Ala. 542.
4. If a railroad company constructs its road across a public road, or highway, the duty devolves upon it to put and keep the approaches and crossing in proper repair for the use of the travelling public. This duty will be sufficiently discharged, if the highway is maintained in a reasonably safe and convenient condition — so as' not to materially impair its usefulness, or interfere with its safe enjoyment by travel
5. We perceive no error in the court’s giving instructions numbered 17 and 18, requested by the defendant. If the plaintiff, Mrs. Patterson, was so negligent as to ride out of the usual route of travel, commonly used by others, and which could have been used with safety by herself, on the occasion of her injury, and was hurt by riding near the end of the bridge, this would presumptively be a want of ordinary care, such as would defeat recovery, provided it contributed to such injury. The instructions assert nothing more than this.
The record does not show the rulings of the court on the several demurrers with sufficient certainty to enable us to pass on them intelligibly. Nor do the assignments of error, based on those rulings, appear to be insisted on in argument. We decline, therefore, to consider them.
■ The other rulings of the court seem to be free from error, and the judgment is affirmed.