though not familiar with its construction, is competent to testify as to whether such appliance was reasonably adapted for the purpose for which it was used, and also as to its condition at the time of the accident.88

Testimony of an experienced brakeman as to whether the track was a proper place for a brakeman charged with the duty of signaling a train is admissible.89

A conductor on defendant's road may testify as to how freight trains are made up on such road, and when the duty of yardmaster ceases, and that of the conductor commences.9 90

A trainman of experience is competent to testify as to whose business it is to make up trains, and as to what conductors generally do when trains are turned over to them.91

A trainman of experience is competent to testify as to the effect of a car, heavily loaded or empty, running rapidly over a switch improperly set.92

One who has been a conductor of an electric street car for two months is competent to testify within what distance. such a car, going at a specified rate of speed, can be stopped.93

An expert in dumping cars may testify that the accident could have happened otherwise than by reason of a defect in the car, and that he had seen a car in good order fly back through the fault of those dumping it.94

A witness shown to have the requisite skill, and who has

135.

80

Alabama Connellsville Coal & Iron Co. v. Pitts (Ala.) 13 South.

Helton v. Railway Co. (Ala.) 12 South. 276.

0 Price v. Railroad Co. (S. C.) 17 S. E. 732.

Price v. Railroad Co. (S. C.) 17 S. E. 732.

Louisville & N. R. Co. v. Mothershed (Ala.) 12 South. 714.

03

Watson v. Railway Co. (Minn.) 55 N. W. 742.

"Donahoe v. Railroad Co., 159 Mass. 125, 34 N. E. 87.

made a personal examination of the place in question where injury was received, may, after describing it, give his opinion as to its dangerous character.95

It is proper to allow a witness who has lived near the scene of the accident, and had seen many trains pass, to give his opinion as to how many miles an hour a train was running, though it appeared he did not know how many feet or rods there were in a mile.96

Testimony of a plaintiff that a train was coming too fast, and that that was the sole cause of the accident, is admissible.97

Where it is impracticable to lay before the jury all the details bearing on the distance a horse car can be seen along a railroad track, the opinions of witnesses may be received.98

An expert cannot testify, from all the evidence given, whether the plaintiff was suffering from the injury complained of prior to the accident upon which suit is brought, as this allows the witness to determine what facts are es tablished by the testimony of others, instead of giving only his opinion upon a state of facts assumed by the hypothetical question.99

A competent witness may testify as to the difference in danger between using an ordinary road engine as a yard engine, with or without a flat car attached to it.100

McNerney v. Reading City, 150 Pa. St. 611, 25 Atl. 57.

9 Ward v. Railway Co., 85 Wis. 601, 55 N. W. 771.

"Georgia Railway Co. v. Bryans, 77 Ga. 429.

813.

East Tennessee, V. & G. R. Co. v. Watson, 90 Ala. 41, 7 South.

"Gregory v. Railroad Co., 55 Hun, 303, 8 N. Y. Supp. 525. 100 Mobile & O. R. Co. v. George, 94 Ala. 199, 10 South. 145.

APPENDIX.

PREMISES.

It has recently been affirmed by the circuit court of appeals, in an elaborate opinion by Justice Brewer, that the principle which requires the master to provide a reasonably safe place for his servants to do and perform their work applies to maintaining proper fences by a railroad company along its right of way to keep animals from straying from adjoining premises upon its tracks. The contention on the part of the railroad company was that the fence statute was enacted for the benefit of the proprietors of adjoining lands, and did not in any manner affect the liability of the company towards its employes. The court gave full consideration to this proposition, and said: "It is doubtless true that, where a right is given by statute, only those to whom the right is in terms given can avail themselves of its benefits. But it does not follow that, when a duty is so imposed, a violation of that duty exposes the wrongdoer to liability to no person other than those specifically named in the statute; on the contrary, it is not unreasonable to say that every party who suffers injury by reason of the violation of any duty is entitled to recover for such injuries. At any rate, it is clear that the fact that certain classes of persons were intended to be primarily protected by the discharge of a statutory duty will not necessarily prevent others, neither named nor intended as primary beneficiaries, from maintaining an action to recover for injuries caused by the vio(537)

MAST. AND SERV.

*

lation of such legislative command. It may well be said that, though primarily intended for the benefit of one class, it was also intended for the protection of all who need such protection. The purpose of fence laws of this character is not solely the protection of proprietors of adjoining fields; it is also to secure safety to trains. That there should be no obstruction on the track is a matter of the utmost importance to those who are called upon to ride on railroad trains. Whether that obstruction be a log placed by some wrongdoer, or an animal straying on the track, the danger to the trains, and those who are traveling thereon, is the same. To prevent such obstructions being one of the purposes of the statute, any one whose business calls him to be on a train has a right to complain of the company if it fails to comply with this statutory duty.

An employe has the same right as a passenger to complain of injuries caused by a violation of duties imposed by such a statute. The purpose is protection to the train. All who are on that train are exposed to equal danger. It is not a case where the employe has the means of protecting himself, and the traveler not; for if the train be derailed, the danger to each is equal. It is urged, however, by the defendant, that the failure to keep the fence in repair is the negligence of a co-employe, and that therefore. it is not responsible; but the duty is cast by the statute upon the company, and it is cast as an absolute duty. It must erect and maintain safe and secure fences. It is a duty whose object is the securing a safe place for the employes on the train to do their work; and that, as is known, is an absolute duty cast upon the company, responsibility for neglect of which cannot be evaded by intrusting it to some employe."1

'Atchison, T. & S. F. R. Co. v. Reesman, 60 Fed. 370.

It will be observed that the language of the court makes the responsibility equal as to passengers and employes. Whether it is to be inferred that the measure of care to be observed as to each in maintaining safe and secure fences is the same is a question not made clear. The duty to maintain a safe place for an employe to work is one of the exercise of reasonable care only. Is it to be inferred that the duty in the respect named, on the part of the master, is an absolute one, imposed by statute, and for that reason not a question of the exercise of reasonable care?

The court quotes approvingly from the opinion in Donnegan v. Erhardt: 2 "A railroad company, for the safety of its passengers as well as its employes upon its engines and cars, is bound to use suitable care and skill in furnishing, not only adequate engines and cars, but also a safe and proper track and roadbed. The track must be properly laid, and the roadbed properly constructed, and reasonable prudence and care must be exercised in keeping the track free from obstructions, animate and inanimate; and if, from want of proper care, such obstructions are permitted to be and come upon the track, and a train is thereby wrecked, and any person thereon is injured, the railroad company, upon common-law principles, must be held responsible. Experience shows that animals may stray upon a railroad track, and, if they do, there is danger that the train may come in collision with them, and be wrecked. Adequate measures, reasonable in their nature, must be taken to guard against such danger. Independently of any statutory requirement, a jury might find upon the facts of a case that it was the duty of a railroad company to fence its track, to guard against such danger. But, whatever the rule would be independently of the statute, there is no rea

119 N. Y. 468, 23 N. E. 1051.