such engineer for the defendant, in that said
engineer so negligently operated said engine
that plaintiff was injured as aforesaid."
Smith, Wilkinson & Smith, of Birming-
ham, for appellant.

"These cases indicate that the production of sudden jars or, jerks in the movement of trains may be held as negligent only when they are violent enough to naturally and probably result in injury to some one on the train who is known to be, or to probably be, in a position of

Black, Harris & Foster and James G. Da-peril from such a movement; and when they vis, all of Birmingham, for appellee.

as it

SOMERVILLE, J. Of the numerous grounds of demurrer to the complaint only three are now insisted upon. These are: (1) The complaint does not show that the defendant railroad company is a common carrier. (2) It does not show any breach of duty owed to plaintiff, inasmuch charges as negligence an act which is not negligent unless the engineer knew, or should have known, that plaintiff was in a place of peril at the time with reference to the act, no such allegation being made. (3) It does not show that immediately at the time of his injury plaintiff was engaged in the performance of the service he was employed

to do.

[1] The first objection is, of course, found ed on a basic requirement, since the federal Employers' Liability Act (U: S. Comp. St. $$ 8657-8665) under which this action is brought relates only to common carriers by railroad, engaged in interstate or foreign commerce. Second Employers' Liability Cases, 223 U. S. 1, 32 Sup. Ct. 169, 56 L. Ed. 327, 38 L. R. A. (N. S.) 44; Bay v. Merrill, etc., Co. (D. C.) 211 Fed. 717; Shade v. N. P. Ry. Co. (D. C.) 206 Fed. 353.

are unnecessary under the circumstances of the particular case." S. L. & S. F. R. R. Co. v. Dorman, 205 Ala. 609, 89 South. 70.

[3] Our cases very clearly support the proposition that, when the act which caused the injury is specified, and is not negligent in itself, but only when the actor was chargeable with knowledge that some one was in a position of peril with respect to consequences, no breach of duty is shown without an allegation that the actor had such knowledge or was so chargeable. L. & N. R. R. Co. v. Bouldin, 110 Ala. 185, 200, 20 South. 325; W. U. T. Co. v. Howington, 198 Ala. 311, 73 South. 550; Mobile, etc., Co. v. Bell, 153 Ala. 90, 93, 94, 45 South. 56. See, also, So. Ry. Co. v. Carter, 164 Ala. 103, 107, 108, 51 South. 147, wherein the principle is well discussed, though not raised as a matter of pleading.

This, of course, does not deny the rule that negligence may be sufficiently alleged in very general terms. But negligence comprehends and rests upon a breach of duty; and, when the injurious act is specified, it must be made to appear, either from the nature of the act, or from the accompanying circumstances, that a duty existed of which the act complained of was a breach. We think the complaint was subject in this respect to the apt ground of demurrer interposed.

[4] We cannot, however, for this cause, reverse the judgment, for the reason that the omitted allegation was nevertheless made an issue on the trial, and the jury were clearly (by specifically instructed

and

[2] That the Southern Railway Company is a common carrier is a fact of such general notoriety that courts may judicially know it, whether as a factor in pleading or in proof. B. & O. R. R. Co. v. Reed (C. C. A.) 223 Fed. 629; State v. M. P. Ry. Co., 212 Mo. 658, 111 S. W. 500; A. G. S. R. R. Co. v. Smith, 209 Ala. 301, 96 South. 239. But, apart from the general principle of judicial knowedge, we know the character and serv-charges 20, 22, and 23) that plaintiff could ice of this company from the Constitution not recover unless he showed that the engiand statutes of Alabama. Const. Ala. § 242; neer operating the train "knew, or in the Code 1907, § 5566; Gen. Acts 1907 (Special exercise of reasonable care ought to have Sess.) 125. The Constitution makes all rail- known, that the plaintiff was in or would road companies in this state common car- probably be in a position of peril at the time riers, and the statutes referred to classify the jerk and shock was caused, if it was this defendant as such by name. caused." Under the rule declared in Best Park & Amusement Co. v. Rollins, 192 Ala. 534, 68 South. 417, and a long line of cases following it, the error in overruling the demurrer must be held as cured by the clear instructions requiring proof of the omitted allegation. That such a complaint states a cause of action, notwithstanding the omission of this allegation, was held in Southern Ry. Co. v. Carter, 164 Ala. 103, 51 South.

Whether in any case a complaint under the federal act should show that the defendant railroad company is a common carrier we need not here determine. If such a showing be necessary as a general rule, judicial knowledge dispenses with it in the instant case, and the omission of allegation was not an available ground of demurrer. A. G. S. R. R. Co. v. Cardwell, 171 Ala. 274, 55 South. 185.

147.

Upon a review of our cases dealing with [5] As for the third objection to the comthe liability of railroad companies for in-plaint, while we are not insensible to the injuries caused by jars or jerks in the opera- genuity of its reasoning, we think it is too

(100 So.)

favor. It was necessary for the complaint | supported by any direct evidence, and their to show not only that plaintiff was injured existence must therefore be grounded upon while in the service or employment of defend-available inferences conclusions of fact reaant, but also that he was injured while en- sonably deducible from the evidence. The gaged in the performance of the service he existence vel non of these two elements of was employed to do, or which was imposed liability under the evidence adduced preupon him by his employment. St. L. & S. sents the most serious and difficult of the F. R. R. Co. v. Dorman, 205 Ala. 609, 89 controverted questions in the case. South. 70, and cases therein cited.

Under such an assignment of error we cannot review the prejudicial effect of the question on the minds of the jury as embodying an assumption or suggestion by counsel of the existence of an unproved fact, and thus unfairly creating a false impression. Such matters as that should be first presented to the trial court by motion for new trial, and can come before this court for review in no other way.

[12-14] The plaintiff was allowed to state that at the time he was thrown from the car he was in his proper place for the performance of his duties. The only objection to the [19] Defendant's witness Fly, a flagman, question was that the evidence was immate testified that plaintiff came to his shanty a rial, irrelevant, and incompetent. This objec- day or two before the accident, at about six tion was not well taken, and does not call p. m. On plaintiff's objection, the trial judge for a ruling upon the question of admissibil-excluded the ensuing question: "Will you deity as opinion evidence, the objection argued in brief. It may be observed, however, that such statements of opinion by a qualified expert are usually held as admissible. 22 Corp. Jur. 685, note 45, citing, among other cases, A. C. L. R. R. Co. v. Enterprise, etc., · Co., 199 Ala. 57, 74 South. 232. See, also, Helton v. Ala. Mid. Ry. Co., 97 Ala. 281, 12 South. 276.

scribe to the jury how he acted, and what was done?" Defendant's counsel stated that they expected to show by this witness that he (plaintiff) "came in there and acted dizzy, and lay down and went to sleep for an hour." The bill of exceptions recites that the witness then testified that "Mr. Dickson was walking like a dizzy man when he came up there; he came into the shanty and sat [15] The plaintiff was properly allowed to down and went to sleep, and slept an hour answer the question “whether, in your opin--something like that." Conceding, without ion, this was only an ordinary jerk incident to the proper handling of all railroad freight trains, or whether it was an extraordinary, unusual, and unusually violent jerk?" B'ham Min. R. R. Co. v. Wilmer, 97 Ala. 165, 11 South. 886. In point, also, are Webster v. A. C. L. R. R. Co., 81 S. C. 46, 61 S E. 1080, 1085; Mullen v. Galveston, etc., R. Co. (Tex. Civ. App.) 92 S. W. 1000; Healy v. Visalia, etc., R. R. Co., 101 Cal. 585, 36 Pac. 125; Southern Ry. Co. v. Vandergriff, 108 Tenn. 14, 64 S. W. 481; Ball v. Mabry, 91 Ga. 781, 18 S. E. 64; K. C., etc., Ry. Co. v. Clinton, 224 Fed. 896, 899, 140 C. C. A. 340.

[16] Defendant's engineer Ledford testified that 25 miles an hour was not the usual rate of speed for a loaded freight train to run at the Spring street crossing, and that he was not running that fast on this occasion. Thereupon plaintiff's counsel queried: "It is too fast, is it not?" Defendant's objection to this question was sustained. Counsel then asked: "That is too fast, is it not, for a freight train with 49 cars to go along Spring street?" This was objected to on the ground that the witness had said he did not know what the usual speed was, and this objection was overruled. This being the only ground of objection stated, and the record showing the contrary, the trial court cannot be put in error for overruling it.

[17, 18] In cross-examining Ledford counsel asked him the question: "It was not necessary for you to suddenly bring about a violent jerk of the car at that place where this man was hurt?" Defendant's objection being overruled, the witness answered: "I didn't do it." The assignment of error is based on the action of the court in overruling the objection, and, since the answer was negative, the ruling cannot be held as prejudicial.

deciding, that the testimony offered was admissible, we think the statement of the witness, as afterwards made, was fairly commensurate, and left no ground for complaint.

[20, 21] Defendant's witness Armstrong had testified that he was on the last car in the train at the time plaintiff fell off, and that there was no jerk or jar at that time. For the purpose of impeachment, plaintiff's counsel asked the witness if he stated to Mr. Davis at St. Vincent's Hospital, about nine months after Dickson was hurt, and in Dickson's room and presence, "that the engine gave a very violent jerk and threw you over against the car, on the night that Mr. Dickson fell from the train and was injured;" to which the witness replied that he did not that he remembered. Thereupon Dickson was recalled, and stated that he was present when a conversation was had, as stated, by Armstrong and Davis. His counsel then asked him this question: "Did you hear Mr. Armstrong say, in substance, to Mr. Davis, at that time and place, that there was a sudden or violent jerk of the train, which caused you to fall from it at the time you were injured?" Defendant objected to the question "on the ground that a proper predicate had not been laid and no time and place had been fixed." The objection being overruled, the witness said that he heard Armstrong make that statement. Unquestionably, we think, the question propounded to Dickson was a substantial departure from the preliminary question propounded to Armstrong, though both questions met all re quirements as to time and place and circumstance. No doubt the trial judge interpreted the objection as one to time and place only, as to which alone it was specific. The authorities very generally hold, and we think

(100 So.)

with good reason, that, where a predicate conditions, but might be made so by extraorhas in fact been laid for the introduction dinary movements of the train. The engiof evidence, the admissibility of which de- neer might, of course, assume that plaintif pends upon the preliminary proof, the objec- would not place himself in a position of tion that a proper or a sufficient predicate | special peril; but if he knew that plaintiff nas not been laid is a general objection mere was in a position of contingent peril with rely, and will not be referred to any specific spect to extraordinary movements of the objection which could have been obviated if train he was bound to govern himself acpointed out at the time. People v. Conk-cordingly. As said by the federal Supreme ling, 111 Cal. 616, 44 Pac. 314, 316; State v. Court in a somewhat similar case: Perry, 51 La. Ann. 1074, 25 South. 944; Tan"When the particular and known condition of derup v. Hansen, 8 S. D. 375, 66 N. W. 1073; the train makes a sudden bump obviously danHenderson v. Dreyfus, 26 N. M. 541, 191 Pac.gerous to those known to be on top of the 442; State v. Soule, 14 Nev. 453; 9 Ency. Ev. 78; 38 Cyc. 1380.

In the instant case the discrepancy be tween the two questions could have been easily obviated if it had been called to the attention of the court and counsel by a specific objection. Under these circumstances we cannot put the trial court in error for overruling the general objection.

[22-24] Plaintiff's counsel were allowed to

ask him, with reference to the movement of the train: "Did it jerk with such violence as to jerk your hand loose from that grabiron?" The only objections to the question were that it was not in rebuttal, and was incompetent, irrelevant, and immaterial. The first ground was addressed to the discretion of the trial judge; the objection of irrelevancy was obviously not good, and that of incompetency was but a general objection, not available for exclusion of the question, for that, as argued in brief, the answer would be a conclusion of the witness, and an invasion of the province of the jury. That objection, to be available, should have been specifically stated. Gilley v. Denman, 185 Ala. 561, 64 South. 97; Bruce v. Sierra, 175 Ala. 517, 57 South. 709, Ann. Cas. 1914D, 125; Mills v. Hudmon & Co., 175 Ala. 448, 57 South. 739; Johnston v. Johnston, 174 Ala. 220, 57 South. 450.

cars, we are not prepared to say that a jury would not be warranted in finding that an easy stop [or slacking of speed] is a duty." T. & P. Ry. Co. v. Behymer, 189 U. S. 468, 23 Sup. Ct. 622, 47 L. Ed. 905.

The charge in question would have been highly misleading, at least, and we think it was properly refused.

[28, 29] Charge 15, refused to defendant,

instructing the jury "that it is usual and customary in switching cars in railroad yards to do such switching without connecting and using air brakes on all of a cut of cars being so switched," etc., was properly refused as abstract there being no evidence of what was usual and customary in such cases. The fact, moreover, was not relevant to any issue in the case.

Charge 14, refused to defendant, was also abstract, and otherwise faulty. [30] Charge 18, refused to defendant, is as follows:

"If, after a fair consideration of the evidence, there is nothing more tangible for the jury to proceed upon than two or more conjectural theories, it is immaterial that the theory which is suggested in the interest of the plaintiff is more probable than that which is suggested in the interest of the defendant."

This statement, taken from the text of 4 [25-27] Charge 16, refused to defendant, Labatt on Master and Servant, was quoted is as follows:

with approval in S. L. & S. F. R. R. Co. v. "If you believe the evidence in this case the Dorman, 205 Ala. 609, 615, 89 South. 70. It court charges the jury that the engineer Led- is a sound expression of judicial philosophy, ford on the occasion complained of had a right but is obviously unfit in form and in phraseto assume that the plaintiff was not in a posi-ology to be given in a charge to a jury. It tion of peril at the time it is alleged that the plaintiff fell or was thrown from the train, and that said engineer had a right to handle his train and regulate the movement of the train acting on that assumption."

is in fact a formula for the use of courts in reviewing the verdicts of juries. We think it was properly refused.

[31] The bill of exceptions recites that one of counsel for plaintiff stated in his arguIt is clear that this instruction, if given, ment to the jury that plaintiff's life would would have been in effect a general affirma- be shortened by his injuries. There was no tive charge for defendant. The evidence claim in the complaint for damages on that tends to show that the engineer knew that account, and counsel for defendant, without the switchmen-including plaintiff-were objecting to the argument, requested an instationed on top of the cars, and that at the struction that plaintiff could not be given point of the accident they were accustomed any damages therefor. Our decisions have to get off the train while moving, as was this settled the rule that objections to the argu train, at about 20 or 25 miles an hour. Their ments of counsel must be taken when the stations on top of the cars, and their posi-statements are made, and cannot be raised by tions while in the act of debarking, were requested charges. B. R., L. & P. Co. v. Mornot positions of special peril under ordinary ris, 163 Ala. 190, 50 South. 198; L. & N. R. R.

Co. v. Holland, 173 Ala. 675, 689, 55 South. | figured as to the posture of his legs, and 1001. The case of Bradley v. Walker, 207 apparently partially crippled for life. It Ala. 701, 93 South. 634, as the opinion points does not appear that he will always suffer out, is not in conflict with this rule. pain, nor that he will be entirely deprived of It remains to consider the merit of the the ability to work and earn in some vocamotion for new trial.