The appellee is the owner of a pasture adjacent to the railroad track of appellant. In the pasture were a number of horses, which, escaping during the night time, went upon the track, and some of them were so injured by a train or trains passing over the road as to render them worthless.
To recover for damages thus sustained this suit was brought. A trial by jury resulted in a verdict for plaintiff, and a motion for new trial being denied, judgment was rendered accordingly. The record is brought here by appeal. We are asked to reverse the judgment upon the ground, as alleged, that the evidence does not support the verdict. It was stipulated at the trial that the animals got upon the track without the fault of plaintiff or defendant, and it follows that the only question is as to the alleged negligence of the defendant by its servants in the management of its trains. There is no dispute as to the law in this respect, and it may be briefly stated thus : That it was the duty of defendant to exercise ordinary care and vigilance, in running its trains, to avoid injuring animals so being on the track, and that if it failed to exercise such care and vigilance, and by reason of such neglect and without fault of plaintiff the injury occurred, then defendant is liable, and it devolves upon the plaintiff to establish such negligence by a preponderance of evidence. There is no direct testimony as to when or how the animals were injured, but we are quite well satisfied, from the circumstances in proof, that they were struck by a train going north, at or about five o’clock in the morning of October 22,1882. At least there is evidence from which this conclusion may be drawn. The evidence from which appellee would deduce the charge of negligence consists mainly of the tracks and marks made by the horses as they were running, and as they were dragged along and finally pitched from the road bed. Assuming that the injury was inflicted by a train going in the direction and at the hour just stated, from the distance the horses ran, apparently at great speed and in much confusion, it is argued that the persons in charge of the engine had ample opportunity for seeing them and avoiding the injury. On the other hand the employes of the defendant running trains that night all testify to their carefulness, and those running north say that though exercising proper vigilance they saw no horses on the track. It is shown that a train going south did strike one horse near this point, and those in charge of that train testify to such circumstances of care as would exonerate the defendant as to that animal. There is considerable evidence as to the grade of the track, the condition of the atmosphere that morning, the distance an object like a horse could be seen at the hour and time of year in question, and upon various collateral matters not necessary to be stated. The question of fact has been well and fully argued by counsel, and has received the very attentive consideration of the court. An extended discussion of the evidence would serve no useful purpose, and we deem it unnecessary to do more than to announce the conclusions we have reached. If the facts and circumstances detailed by the plaintiff’s witnesses were true, it is not unreasonable to say that the servants of the company might, in the exercise of ordinary care, have avoided inflicting the injuries in question, and giving due weight to the testimony offered by the defendant and making proper allowance for the judgment and discrimination which the jury were warranted in exercising when they came to consider all the evidence before them, we are not able to say that the circuit court erred in refusing a new trial. True, no one saw the occurrence, and the burden of proving negligence is upon the plaintiff; yet this may he made out quite as well by the circumstances as by direct proof. 1 Gr. Ev., Secs. 13 & 15. The jury were properly instructed as to the legal questions involved and the conditions essential to a recovery, and while they may have misconceived or misunderstood the evidential value of some of the facts in proof, we can not, under the well known rules applicable in such cases, see our way clear to disturb their verdict. It is urged also that the circuit court erred in permitting witnesses to give their experience as to how far a horse could be seen at five o’clock in the morning of October 22d. Several witnesses were allowed to so testify. As already stated, we think the animals were struck by a train going north about that hour, and that the main question of difficulty is as to the care exercised by those in charge of this train. The inference of negligence would be strong or weak in proportion as the opportunity for observation was perfect or imperfect. If there was abundant light then it might easily be inferred from the indications afforded by the tracks and the marks along the road bed that there was great negligence; if the light was insufficient this inference would be of less force and so on. It would be competent for a juror to bring to his aid, in considering the other testimony in the case, his-own experience in this regard, and the first question he would ask himself would be as to how far and how well one can see at that hour in the morning; and were there no testimony as to the experience of others in making observations at that time, he might well weigh the facts proved in the light of his own experience. We entertain no doubt that such evidence is competent. It tends to prove the issue. It may be conceded that its value is uncertain, since no witness could have been placed under precisely the same conditions as the engineer and fireman whose duty it was to keep a lookout on that morning. It is not expert testimony. It is rather the proof of an important fact necessary to be known in order to place a proper estimate upon the other facts in proof. An authority referred to by counsel for appellant and mainly relied upon is a Hew York case, whose facts and circumstances are unlike those of the present case, and we deem it not in point. We see no such, error in the record as would justify a reversal, and therefore the judgment of the circuit court is affirmed.
Affirmed.