R. Co. v. McClelland, 42 Ill. 355; Steinweg v. Erie R. Co., 43 N. Y. 123; Anderson v. Cape Fear S. Co., 64 N. C. 399; Case v. Northern Central R. Co., 59 Barb. 644; Dimmock v. North Staffordshire R. Co., 4 Fost. and F. 1058; Longman v. Grand Junction R. Co., 3 Fost. and F. 736; Crest v. Erie R. Co., 1 T. and C. (N. Y.) 435; Longabaugh v. Virginia City, etc., R. Co., 9 Nev. 271.

In such case, however, the evidence of insurance experts is not admissible to prove that the distance between the building fired and the line of the railroad was such that the rate for insuring the former was materially enhanced. Milwaukee, etc., R. Co. v. Kellogg, 94 U. S. 469.

The cases in which evidence offered as expert testimony has been refused are numerous. These proceed as already stated upon the ground that the subject matter is one of common knowledge and not involving any particular skill or training. A brakeman is not competent to express his opinion as an expert as to the proper and safe method of coupling cars. Hamilton v. Des Moines Valley R. Co., 36 Iowa, 31; Belair v. Chicago and N. W. R. Co., 43 Iowa, 662.

A conductor cannot be called upon to testify as an expert as to whether the conduct of a brakeman in the performance of his duty was reasonably prudent and careful. Gavisk v. Pacific R. R. Co., 49 Mo. 274.

Where an accident happened to a train in consequence of the dangerous condition of a bridge, the evidence of the company's bridge builder as an expert was held inadmissible to show that at the time of the accident the bridge was safe. Toledo, P. & W. R. Co. v. Conroy, 68 Ill. 560. But this case would seem to go to the very extreme point of the law and may be doubted. See Union Pac. R. Co. v. Clopper, 2 Am. & Eng. R. Cas. 649.

A person who has had a long experience as a railroad superintendent has been held incompetent to testify as to the meaning of a notice posted in the cars. Macon & Western R. Co. v. Johnson, 38 Ga. 409.

Expert evidence is not admissible to show whether a train stopped long enough to allow passengers to alight. Keller v. N. Y. Cent. R. Co., 2 Abbott Ct. App. 480.

Whether the company employed a sufficient number of brakemen. Harvey v. New York Cent. & H. R. R. Co., 19 Hun. 566.

Whether the blowing of a whistle was safe and prudent with reference to travel on a highway. Hill v. Portland & R. Co., 55 Me. 438.

Or what the custom of other companies was in that respect. Hill v. Portland & R. R. Co., 55 Me. 438; Koons v. St. Louis & I. M. R. Co., 65 Mo. 592; Bailey v. New Haven & N. R. Co., 107 Mass. 496. See, however, Quimby v. Vt. Central R. Co., 23 Vt. 387; Illinois Cent. R. Co. v. Reedy, 17 Ill. 580.

It has also been held inadmissible where the question raised is the safety of a locomotive and tender of a certain pattern. Way v. Illinois Central R. Co., 40 Ill. 341.

And also whether or not a turntable is a dangerous machine, and whether it is perilous and negligent to leave the same unlocked. Koons v. St. Louis & Iron Mt. R. Co., 65 Mo. 592.

In actions to recover damages for injuries occasioned by railroad accidents, physicians are frequently summoned as experts. They may express their opinion as to the cause, nature, duration and probable result of the injury either from actual examination or upon the state of facts proved by the testimony of other witnesses. Beckwith v. N. Y. Central R. Co., 64 N. Y. 299; Grand Rapids & I. R. Co. v. Martin, 41 Mich. 667; Kansas P. R. Co. v. Pointer, 9 Kans. 620; Lincoln v. Saratoga & S. R. Co., 23 Wend. 425; Matteson v. New York Central R. Co., 35 N. Y. 487; Perkins v. Concord R. Co., 44 N. H. 223.

Where a physician speaks from personal examination, that examination

must have been a careful, thorough and complete one. Grand Rapids & I. R. Co. . Huntley, 38 Mich. 537.

In no case can a physician be called upon to express an opinion upon a state of facts purely hypothetical. Muldouney v. Illinois Central R. Co., 39 Iowa, 616; Hurst v. Chicago R. I. & P. R. Co., 49 Iowa, 76. But only upon a state of facts proved by the other witnesses in the cause to exist.

The injured part may be exhibited to the jury in court for the purpose of illustrating and elucidating the physician's testimony. Mulhado . Brooklyn City R. Co., 30 N. Y. 370.

In order to render the evidence of a physician admissible as that of an expert, it is not necessary that the witness shall have graduated from a medical college, provided, of course, he has acquired the necessary skill and experience. New Orleans, J. & Gt. N. R. Co. v. Allbritton, 38 Miss. 242.

A person not a physician is nevertheless competent to testify as to the necessity of another for medical attendance and how long that necessity continued. Chicago, B. & Q. R. Co. v. George, 19 Ill. 510.

A physician when called as an expert is only competent to testify as to those things within the scope of his professional attainments. He cannot therefore express an opinion as to how far a certain injury will debar a man from subsequently exercising a business like that of a brakeman requiring no special and peculiar skill. Heine v. Kansas City, St. J. & C. R. Co., 50 Iowa, 656.

THE CENTRAL R. R. AND BANKING CO.

v.

ROACH.

(64 Georgia Reports, 635. February Term, 1880.)

In a suit by a widow against a railroad company for the homicide of her husband, who was an engineer in its employment, two things are necessary to a recovery: First, absence of negligence on his part contributing to the occasion or cause of his death; and second, negligence on the part of the company or some other agent or employee. When it is shown that the deceased was without fault, the presumption of negligence on the part of the road arises. It may, however, be rebutted by proof. If neither the company nor the employees were negligent, there can be no recovery.

An engineer having jumped from his engine and been killed, and the question being whether or not he was without fault, the necessity for jumping, his ability to jump, and the safety with which he could do so, are all for the consideration of the jury, and it was error for the judge to charge that "the fact that he jumped is proof that he thought jumping the safest course."

The court charged as follows: "The pecuniary damages to the wife from the homicide are to be ascertained by inquiring what would be a reasonable support, according to the circumstances in life of the husband as they existed at his death, and as they may be reasonably expected to exist in view of his character, habits, occupation and prospects in life; and when the annual money value of that support has been found, to give as damages its present worth, according to the expectation of the life of the deceased, as ascertained by the mortuary tables of well-established reputation:"

Held, that under the facts of this case, the court should have amplified this charge, and the attention of the jury should have been called to the de

clining years of the deceased and the probable decrease year by year of his capacity to labor at his calling.

In a suit by the wife of an engineer against a railroad company for his homicide, the jury should consider the age of the deceased and if old, his consequent incapacity to labor long.

As to the negligence of the engineer of the train immediately preceding that on which the deceased was, it does not depend on his incapacity, by reason of fits or otherwise, to properly handle his train, but on whether, under the facts and circumstances surrounding him at the time of the injury, he was negligent in stopping at the curve.

To the report contained in the decision, it is only necessary to add the following:

Mrs. Roach sued the company for the homicide of her husband. He was an engineer in the employment of defendant. On the night of January 28th, 1878, three freight trains started from Macon to Savannah, on defendant's road. Roach was the engineer on the last train; one Greenlaw was engineer on the train next in front of him. While going round a curve, Greenlaw checked the speed of his engine, and continued to check it for some time, saying he saw a light in front; the conductor sent a man back to stop the rear train, and signalled to Greenlaw to go on, which he finally did. In the mean time the rear train came up. Roach seeing the train going with comparative slowness in front of him, blew on brakes, reversed his engine, told another employee on the engine to jump off, and then jumped himself. He was injured so that he died from the effects. The train ran on and just came in contact with the one in front before stopping; but the collision was not serious enough to injure any one on either train. As to the prudence of Roach in jumping, or the apparent necessity for doing so, and also as to the diligence of the company, the evidence was somewhat conflicting. There was a good deal of evidence in regard to Greenlaw's being afflicted with epileptic fits, and as to whether the company was chargeable with notice thereof all of which is immaterial here. Roach was nearly sixty-one years of age at his death. According to the mortuary tables his expectancy of life was nearly fourteen years.

The jury found for the plaintiff $5,000. Defendant moved for a new trial, which was refused, and it excepted. The grounds of error necessary to an understanding of the decision are as follows:

1. Because the court erred in refusing to charge the jury when requested by defendant's counsel, as follows: "If the jury be satisfied that the plaintiff's husband was himself wholly without fault or negligence in connection with the incidents, or any one of them, which directly contributed to the cause of his death; and should be further satisfied that by no effort of his own could he have avoided the loss of his life, but should find, on the other hand, that the railroad company was not guilty of negligence, or of failure in

the discharge of ordinary duty by the defendant, or either of its employees, which caused his death, still the plaintiff cannot re

cover.

2. Because the court erred in refusing to charge the jury when requested by defendant's counsel, as follows: "If the jury find that the capacity of plaintiff's husband to spring from an engine under the circumstances, with safety to himself, had been impaired by advanced age, or by any other cause, it was his duty to take notice of this fact; and if he failed to be mindful of it, and thereby incurred a greater risk than he would have been exposed to had he remained upon the engine, the plaintiff cannot recover."

[In connection with the refusal to charge as requested by defendant's counsel, the court charged as follows: "This fourth request calls upon me to charge you as law that if Roach, by pursuing any other course than the one actually pursued, would or might have saved his life, the plaintiff cannot recover. To give you this charge would be virtually to charge you to find a verdict for defendant, if you found the fact that if he had remained on the engine he would not have been killed. If this be so, Roach could not have known. it. The fact that he jumped, if you find that he did jump, is proof that he thought jumping the safest course. If the fact now ap

pears that another course was safer, it does not follow that he was in fault for jumping. His obligation was to pursue that course which under the circumstances was reasonable and proper.

I think an old man has as much right to jump as a young man, to avoid the consequences of an impending collision."]

3. Because the court erred in charging the jury as follows, as to the rule of damages: "First determine what amount per annum you will give the plaintiff; then calculate the present worth of that amount for each year separately, add these present worths together and find the aggregate amount in solido. This you must do for the number of years you find, under the testimony, that Roach would have lived but for the accident."

4. Because the court erred in this: That after having charged the jury in full, and refused to give other charges as requested, and after the jury had retired to their room for a half hour or more, without any request from the jury and against the objection of defendant's counsel, he re-called the jury from their room into the court and read to them from 38 Ga. 410, as follows: "The pecuniary damages to the wife from the homicide is to be ascertained by inquiring what would be a reasonable support, according to the circumstances in life of the husband, as they existed at his death, and as they may be reasonably expected to exist, in view of his character, habits, occupation, and prospects in life; and when the annual money value of that support has been found, to give as damages its present worth, according to the expectation of the life

8 A. & E. R. Cas.-6

of the deceased, as ascertained by the mortuary tables of well-established reputation."

[On the last two points the court certified as follows: "I further certify that the charge as to the rule for estimating damages, given when the jury was recalled, was in the place and stead of the charge on this point as originally given; I therefore submit that the original charge is no part of my charge to the jury."]

5. Because the damages were excessive.

6. Because the verdict was contrary to law and evidence.

A. R. Lawton: W. S. Basinger, for plaintiff in error, cited 50 Ga. 465; 55 ib. 133; 58 ib. 485, 107; 119 Mass. 412; 122 ib. 251; Am. Law Rev., 1880, pp. 295, 302, 304.

R. E. Lester, for defendant, cited Code, §§ 3033, 2083, 2202, 2067; 59 Ga. 441; 2 Campbell, 69; 3 Pet. 181; 9 Met. 1; 18 N. Y. 543; Ang. on Carriers, (4 Ed.) 568, top. 497; 8 Cent. L. J. 12; 7 ib. 222; 16 How. 469; Crawford v. Ga. R. R. (Feb. T., 1879); Ang. on Corps. (4 Ed.) § 540-1; 58 Ga. 216; 15 Wallace, 649; Code, §§ 2961, 2972, 1680; 46 N. Y. 23; 15 Wal. 649; 56 N. Y. 295; 7 Me. 202; 14 How. 468; Sher. and Red. on Neg. 19; 3 Hurl. and C. 596; 20 Ga. 146; 45 ib. 509; 56 ib. 588; 58 ib. 485; 59 ib. 436; 38 ib. 409; C. R. R. v. Richards, (Feb. T. '79); Sher. and Red. on Neg. §§ 28, 282.

JACKSON, J.-Mrs. Roach, the widow of a locomotive engineer on the Central Railroad, in charge of the engine on one of three freight trains thereon, running at night, sued the railroad company for the homicide of her husband; the jury found for her $5,000 damages, the company made a motion for a new trial on various grounds, it was overruled on all, and the company excepted to the judgment overruling its motion.

We think that the motion should have been granted on some of the grounds therein stated.

1. The first ground is that the court declined to give in charge the following request: "If the jury be satisfied that the plaintiff's husband was himself wholly without fault or negligence in connection with the incidents, or any one of them, which directly contributed to the cause of his death; and should be further satisfied that by no effort of his own could he have avoided the loss of his life, but should find on the other hand that the company was not guilty of negligence, or of failure in the discharge of ordinary duty by the defendant, or either of its employees, which caused his death, still the plaintiff cannot recover."

Two things are essential to enable the plaintiff to recover. First, no fault on the part of her husband contributing to the occasion or cause of his death, and secondly, negligence or fault in the company, or some other agent or employee thereof, which did so contribute. The plaintiff's husband may not have at all been at fault,