Neither the language nor the substance of the fifth interrogatory to the witness, W. A. Johnson, is stated in the record. The answer to it is that he knew the road was in bad condition from the jostling of the train, and this answer is objected to on the ground that it is not responsive to the question. The bill of exception does not state that the answer was not responsive, but that it was objected to on that ground, and that the objection was overruled. We assume that the court considered that the interrogatory did call for the answer given, and, without knowing what the interrogatory was, we cannot revise the ruling.
The opinion that the railroad track, at the time and place where the wreck occurred, was out of repair and in an unsafe condition, testified by Johnson and other witnesses, was objected to on two grounds : First, that the subject was not one of common information, and the witnesses did not qualify as experts; and, second, that the subject was one of common information, and the jury could form their own opinion.
It is not necessary to determine which of the inconsistent bases of *566objection is correct. The'witnesses had actual knowledge of the particular part of the road in question, and testified as fully as they could to the facts upon which their judgments were founded. This brought their opinion clearly within the rule, if the matter was one requiring technical or special information. Wharton on Ev., sec. 513.
On the other hand, the opinions were admissible, if the condition of the road could be judged of by men of ordinary information, for the reason that the witnesses, from actual observation, had acquired knowledge, which could only be communicated to the jury as a result. A juror would be as competent as the witness to form an opinion, if he had seen what the witness saw, but what the witness observed 1 ‘ cannot be reproduced and made palpable in the concrete to the jury’ ’ —“language is not adequate to such realization.” The aggregate impression is what is reported to the consciousness and preserved in the memory, and that is susceptible of expression only in the form of an opinion. Wharton on Bv. sec. 511. The leading facts consciously conducing to the opinion can and must be stated, but the appearance of the road, made up of patched rails, worn or rusted in various degrees, some properly, some partially, and some not at all, fastened together at the ends ; the ties in all the stages of decay, some with the iron spiked to them and some not, some in a socket of mud, and some firmly embedded in the earth, the roughness of the track, perceptible with precision at a glance, but insusceptible of accurate portrayal, in words, each of which contributes to the general appearance an indefinable part, this whole appearance of the road cannot be adequately stated in language. Its best reproduction is in the shape of an opinion. What can be stated, is sufficient to test the witness’ knowledge and accuracy of observation, and upon these depends the value of the opinion. Upon either of the irreconcilable hypotheses, ' upon which the testimony was opposed, we think it was properly admitted. The defendant in error testified that the injury he sustained caused him to lose a few days’ time in Cincinnati, but that his employers made no deduction, on this account, from his wages. He lost time as a result of the injury, and was entitled to be compensated for this loss. If the continuance of his wages was a provision of his contract, or a grace of his employers, the defendant was not entitled to the benefit' of either. The time was lost by him, and what it was worth, he was properly authorized to recover.
If the charge omitted to confine the estimate of compensation for mental and physical suffering to the case made by the evidence, the error cannot be complained of here, as the attention of the trial court to the omission was not called in any way.
*567The first special charge requested by the defendant was properly refused. It sought to have applied to the defendant’s care of its road, the test of the judgment of experienced railroad men upon the safety of the track. A railroad man may be ever so experienced, and, yet, wholly incompetent—he maybe reckless of human life, notwithstanding his experience. The charge of the court upon this point of diligence was all that the defendant could lawfully require.
The charge of the court authorized a verdict for the plaintiff, on the issue as to the condition of the track, only if the jury should believe the road was in bad condition at the time and place of the injury. This was the substance of the third special charge, and its refusal was not error. #
The verdict was not excessive under any rule this court has ever announced or acted upon. The verdict was for $2,565—forty of this was for a purse and money lost in the wreck; twenty-five for doctor’s bill actually paid out in Cincinnati, for painful bruises about the face and head, a wound on the hip, and for a very painful and, probably, permanent injury to the ankle. The remaining $2,500 cannot be considered an unconscionable assessment of damages.
The motion to charge the plaintiff with the cost of taking depositions, not used on the trial, was justly denied. It was the right and duty of the plaintiff to prepare his case for trial, and the mere fact that he has not used a lot of testimony, probably taken to disprove a defense not urged, or strengthen a point not contested, shows no abuse of the privilege of accumulating costs, and affords no reason for taxing the plaintiff with the expense of obtaining the evidence not used. G. C. & S. F. R’y. v. Evansich, 61 Tex. 3.
There is nothing in the record showing that the rules of law have not been followed, or that the justice of the case has rot been accomplished, and the judgment is therefore affirmed.
Affirmed.
[Opinion delivered February 23, 1886.]