Harris v. Nashville C. & St. Louis R. R.

McCLELLAN, J.

(dissenting). The injury complained of was that of an 18 months’ old child at a public road crossing. The pleadings, as well as the material facts, aside from the exception to be noted, are set forth in the report of the former appeal. — N., C. & St. L. Ry. v. Harris, 142 Ala. 249, 87 South. 794, 110 Am. St. Rep. 29. The exception referred to is that, on the first trial, *147the enginemen testified that, when they discovered the perilous situation of the child, the engine was reversed, the brakes applied, and the track sanded, and all in their power was done in an effort to stop the train and avert the injury; but, on the succeeding trial, the testimony Avas that the engine Avas not in fact reversed, because that Avould have broken the effect of the applied air brake and Avould have resulted in a longer stop. The opinion of the court holds that the affirmative charge for defendant was correctly given; and the dissent of the Avriter is based upon tAvo grounds: First, that the affirmative charge should never be given Avhere expert or opinion testimony is the reliance for proof or disproof of a material issue in the cause; second, that the statute (section 3440) commands, under the conditions therein stated, the application of the brakes and the reversal of the engine.

Taking them up in order, the record affirmatively sIioavs that the engineer testified as an expert with 30 years’ experience in that capacity; and it also appears that the perilous situation of the child Avas known to the enginemen Avhen the train Avas about 150 yards from where she Avas struck by the engine. The last clause of section 3440 provides: “He must also, on perceiving any obstruction on the track, use all the means within his power, known to skillful engineers, such as applying brakes and reversing engine, in order to stop the train.” Assuming, for the present purpose, that the .construction given this clause by the court is correct, which embraces the interpretation that the provision for the application of the brakes and reversal of the engine is merely “suggestive, not mandatory,” the issue governing the propriety of the charge, under the testimony introduced, was whether the engineer used all the means within his power, known to skillful engineers, among *148which the Legislature suggested the brakes and reversal, were applied to stop the train. The inquiry, upon which the affirmative charge was given, did not involve the question whether plaintiff: had discharged the burden of proof, but the sufficiency of the proof to justify the giving of the charge. The means themselves, such as the brake appliances and the reverse lever, are not alone the means contemplatd by the statute; but they include such application of them, upon one occasion, as skillful engineers would employ. If this were not true, the wise purpose in the statute’s enactment could be entirely thwarted by the application of the means required, but unskillfully, negligently. It follows, as of course, that since these elements are not expressly defined by the statute their ascertainment must rest in expert or opinion testimony. They are not facts as such, and can only be expressed in opinion, which may he said tó be a mental conclusion arising from the method adopted and employed to stop the train.

This case,-it is thought, is a perfect and practical illustration of the view entertained. There was no other way for the defendant to acquit itself of the negligence imputable from its avowed failure to use the suggested means, or to show that the means used by its engineer were those within his power known to skillful engineers, than to invoke expert opinion of witnesses of proven experience or qualification. In every case, where skillfulness in the performance of a duty, or where the selection of approved skillful means, is an essential element of the controverted inquiry, expert or opinion testimony is the only recourse to sustain or refute the proposition. Even though the witness testified from an actual test, made under similar circumstances and conditions to the matter under investigation, his testimony, as it bears upon the issue, is nothing but a conclusion — an opinion *149—to be taken and weighed as such. The test by an expert, and testified to, if admissible, by him, is but a basis for his opinion, and is not testimony, in and of itself, disassociated from his conclusion, which it (the test) only purports to support. If so, the pertinent question is: Can the affirmative charge be properly predicated upon that character of testimony? To quote one, in accord with the rule obtaining here, from time immemorial, by which the propriety of the affirmative charge has been often determined. — Stone, C. J., in Tabler v. Sheffield Land Co., 87 Ala. 309, 6 South. 196, treating an affirmative charge that was framed with hypothesis, said: “To support the general charge, the evidence must be so clear and convincing as that the court could rightly sustain a demurrer to the evidence of the opposite party. If the evidence be in conflict, or if it be circumstantial, or if a material fact in the case rest in inference, the general charge should not be given.” To the same effect, where the charge bore the usual hypothesis, are, among others, Weil v. State, 52 Ala. 22, by Brickell, C. J., and Bridges v. Tenn. Co., 109 Ala. 294, 19 South. 495, by Coleman, J. The giving of the affirmative charge is a declaration of law by the court, just as its action in sustaining a demurrer to the evidence is a pronouncement of law.

Expert testimony is admitted for the sole purpose of enlightening the jury and aiding it in arriving at a correct conclusion in the premises, hut not, though unimpeached, to control its judgment. — Rogers’ Expert Testimony, § 207, and note; Andrews v. Frierson, 144 Ala. 470, 39 South. 512; Watson v. Anderson, 13 Ala. 202; McAllister v. State, 17 Ala. 438, 52 Am. Dec. 180; Anthony v. Stinson, 4. Kan. 211; Head v. Hargrove, 105 U. S. 45, 26 L. Ed. 1028; Washburn v. R. R., 59 Wis. 364, 18 N. W. 328; Choice v. State, 31 Ga. 480; 1 Blash. on *150Juries, § 238; A. G. S. R. R. v. Hill, 93 Ala. 514, 9 South. 722, 30 Am. St. Rep. 65. Whether the subject of the opinion or expert testimony be sanity vel non, value of services, skillfulness in the use or selection of means to effect a. parpóse requiring skill, or that of handwriting, the principle is the same, viz., that such testimony is but a conclusion, and, if such testimony is made binding on the jury, as the affirmative charge did here, the result is a substitution of the conclusion of the witnesses for that of the jury, which, of course, cannot be allowed. Therefore it seems that, not only was the general charge improperly given below, but also, on the same reasoning, the former opinion in this respect is unsound. Whether the means known to skillful engineers were availed of to avert this injury is clearly shown, in this case, to have rested in the expert opinion of the defendant’s witnesses. The principle is illustrated in McCarthy v. Railroad, 102 Ala. 193, 14 South. 370, 48 Am. St. Rep. 29; Jackson’s Case, 136 Ala. 279, 34 South. 994; Railway v. Welsch, 155 Ill. 511, 40 N. E. 1034; Puntenney’s Case, 200 Ill. 9, 65 N. E. 442; Wigmore on Evidence, §§ 461, 1449-1451, a,nd notes thereunder. The fact that the charge hypothesizes upon a belief of the evidence cannot alter the result; because, aside from the requisite clearness of the testimony, if such a charge can only be given when a demurrer to the evidence could be rightly sustained, the jury has no discretion, unless the folly is indulged of inhibiting the giving of the charge under such circumstances, and which is an adjudication that the opposing party is without right to a judgment in his favor, but at the same time committing to the jury the discretion to give the opposing party a verdict, the foundaion of a judgment.

Reference may be here made to the Foshee Case in the respect it is overruled. It was therein held that the jury *151were entitled to bring their common knowledge and experience to bear in passing upon the inquiry whether a reversal of the engine was one of the skillful means to effect a quick stop, rather than its omission in favor of the application of the air brake. What is above written applies to the Foshee Gase. In fact, if the views expressed are correct, the overruled principles announced in the Foshee Gase are unquestionably sound, because, if expert testimony is merely “advisory,” and does not conclude, though unimpeached, the jury, it follows necessarily that their common knowledge and experience must be applied in passing upon the credibility and weight of the expert testimony in its sphere of enlightening their determination of the issue submitted. If their common knowledge and experience cannot be applied, then the expert testimony is without testing standard, and must be taken, if given any effect, as conclusive on the jury, which we have seen cannot be done.— Binion’s Gase^ cited by the court, does not appear to be in point, for the reason that the common knowledge there denied was of a special mechanical contrivance and its possible defects; whereas in the Foshee Gase the result of applied friction and the ever operative law of gravitation, both familiar natural laws, was the inquiry. In the former the court was asked to exercise common knowledge of a particular contrivance; and in the Foshee Gase it was appealed to as regards the effect of two kinds of restraining influences based on the familiar natural laws mentioned.

The second ground of dissent involves a consideration of what seems to be a very serious impairment of a statute which was adopted, and has been for nearly 50 years among our laws, in an effort to' conserve life and limb. —Section 3110 originated in the act approved February 6, 1858. — Acts 1857-58, p. 15. No important change has *152ever been made in it. If it is granted that tbe interpretation given tbe statute by the court is tenable, it is then confessed that the legislative intent was, not to leave the known skillful means wholly unmentioned, but to suggest the brakes and the reversal as the proper means to a skillful performance of the duty enjoined. In this light, it would seem to be at least incautious to assert, to the extent of justifying the affirmative charge, that expert testimony, though unimpeached, was effectual to refute the wisdom of the legislative suggestion of known skillful means which has for nearly half a century stood as law. If a jury cannot be lawfully concluded by unimpeached expert testimony, is it righteously possible that a suggestion, pertinent to the very subject, written and rewritten, enacted and often re-enacted by our law-makers can be denied efficacy by mere expert opinion and conclusion? The quotations used, arguendo, in the court’s opinion, concede and demonstrate that, at the time of the test, there existed with reference to what was the best means to the more quickly stop a running train the greatest doubt; and these excerpts come from the “Association of Railroad Air Brake Men,” the name and proceedings of which organization indicate some kind of special concern or relation with the air brake, which, in the interest of life and limb, is arrayed, for supremacy, with the statute-suggested method of reversing the engine to stop a train. Whether the relative term “such as” finds its antecedent in the word “means,” or in the qualifying expression “known to skillful engineers,” it operates to make example of the application of brakes and reversing the engine. The word “such” is given this definition by Webster: “Of that kind; of the like kind; like; resembling; similar; having the particular quality or character specified; the same that — with as.” In addition to these meanings, the Century Die*153tionary defines it thus: “The same as previously mentioned or specified; not other or different; of that class; especially in the phrase ‘as such’ — ‘in that particular character’; the same.” And, since there is nothing in the statute to show a contrary intent, it is certainly our duty to give the word its ordinary and generally accepted meaning and effect. If so, it is beyond controversy that the intent of the lawmakers was to provide an example of the means to be, in the event, used to stop the train. If, as appears to have been done by the court, the “such as” phrase qualifies the “known to skillful engineers” phrase, then it is even more apparent that the use of the provision is to exemplify those means so known, viz., reversing the engine being stipulated as among them. And, if we take the reasoning of the opim ion of the court, the construction given the phrase is sought to be justified by the improvements made in brakes, and, if that is potential against a conceded suggestion by the Legislature of means to stop a train, then it must follow that, if no air brake had been perfected, the matter in hand would not be even mooted. This statute is the basis of a penal statute, and for that added reason ought not to be subjected to such uncertainty. If the statute had only expressed the duty to use all means known to skillful engineers, the status would be entirely different, and the reasoning of the opinion would be sound in the declaration of the enacted purpose to require the use of all means known to skillful engineers, for then improved facilities alone, without the influence of the particularized means to which the lawmaker wrote, would he the measure of the duty the statute commands.

There is another reason against the construction taken by the court. In Foshee's Case, it is said: “Certain it is thát, in all our experience in dealing with hundreds *154of similar cases, it has never before been suggested that reversing the engine is not an improved and powerful means of stopping or reducing the speed of trains; and it is so recognized by the statute law of the state. — Code 1896, § 3440.” That action, was for an injury suffered in December, 1897. Lacking about 3 months, the statute cited had been in force 40 years. Por this long period it had been, in the respect in question, operated under, applied, and embraced by the railroads of this state as the measure of their duty, upon proper occasion, without invoking judicial consideration of the point first taken in the Foshee Case. And throughout more than half of this period the air brake was in general use by the improved and well-ordered railways of this country. Under these circumstances, and assuming that the legislative intent to provide for the brakes and reversal of an engine is ambiguous with respect to whether it is suggestive or mandatory, the rule of construction, that long and uniform acquiescence in and action upon and practice under a law, by those sustaining a duty to be performed thereunder, evidencing a contemporary construction of it, is applicable here; and, the Legislature being presumed to be cognizant of it where such contemporary construction obtains with reference to a law and that law is re-enacted or repromulgated, the presumption is strong that in re-enacting or repromulgating the law thq Legislature intended it to have the construction previously put upon it. — 2 Lewis’ Suth. Cons. § 44; Id. § 403, and authorities in note; Wetmore’s Case. 55 Ala. 198. If this rule of construction is applicable, and it is, can there be any doubt that the legislative purpose was to command the reversal of the engine. If the requirement of the statute in this respect is wrong and hinders the purpose in its enactment, it is the province of the Legislature, not of the courts, to alter it.

*155In my opinion, the judgment should have been reversed, and the cause remanded.

Tyson, O. J., concurs in the dissent of McClellan, J. ' ANDERSON, J.

— My Brother McCLELLAN, in the opinion for the minority, grounds the reason for dissent, not only upon the construction given by the majority to the statute (section 3440, of Code 1896), but upon the further reason that the defendant’s evidence was merely the opinion of experts and would not sustain the general charge, with the hypothesis, even if the statute was properly construed. The first question has been fully discussed in the original opinion, and I refrain from further consideration of this proposition, and shall briefly reply to the other one, as it was not fully discussed in the original opinion. In fact, the only contention made by counsel for the appellant for a reversal of the cause was upon the right of the trial court to give the affirmative charge, because the evidence showed that the engineer did not reverse the engine.

In the first place, I do not entirely agree that the defendant’s evidence was a mere opinion. The engineer stated in detail what he did to stop the train, and also stated that he did not reverse the engine because the quickest way to stop the train was by doing what he did. It may be that a portion of the evidence is in the nature of an opinion, yet it could be considered the statement of a positive fact, based on tests and experience, and to which the witness would be willing to swear as a fact, and as to which he .did so swear in this instance, in the absence of any disclosures by cross-examination or otherwise, that he was merely giving his opinion. The cross-examination does not show that the engineer was merely giving his opinion; but the bill of exceptions re*156cites that he “explained to the court and jury how working the engine back would not stop the train as quickly as if it was not worked back.” Conceding, however, that it was opinion evidence, and its credibility was for the jury, which is the general rule as to such evidence, with perhaps the exception that it is sometimes a question for the court, when the subject is one for experts alone and one on which the jury cannot be presumed to have opinions of their own (Leitch v. Atlantic Ins. Co., 66 N. Y. 100), the charge submitted the credibility of the evidence to the jury, and, as it was not contradicted, the defendant was entitled to a verdict. Our court has repeatedly held that the general charge, with the hypothesis, should have been given upon undisputed evidence of a similar character to that in question. — L. & N. R. R. v. Marbury, 125 Ala. 256, 28 South. 438, 50 L. R. A. 620; A. G. S. R. R. v. Moody, 90 Ala. 46, 8 South. 57; N. & C. R. R. v. Hembree, 85 Ala. 481, 5 South. 173; A. G. S. R. R. v. McAlpine, 75 Ala. 113; Anderson v. B. M. R. R. 109 Ala. 129, 19 South. 519; and many other cases, including this identical case on former appeal, 142 Ala. 249, 37 South. 794, 110 Am. St. Rep. 29. Several of the above cases emphasize the fact that the charges worded as the one in the case at bar submitted the credibility of the evidence to the jury, and, if believed by them, they should find a verdict for the defendant. The evidence in this case was undisputed, and, if believed by the jury, entitled the defendant to a verdict. There were no contradictory inferences growing out of a common knowledge on the subject; for, as we held in the former opinion, common knowledge, if resorted to at all, corroborated, rather than contradicted, the engineer.