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ways and private ways, do not seem always entirely consistent with each other, the rule being never to disturb a verdict where the damages are at all reasonable, provided there was any proof, although the slightest, of the omission of duty on the part of the company's servants, and provided also that the plaintiff was not himself in fault. In two recent cases, there were no watchmen or gatetenders present, at crossings of public ways; and in both instances foot-passengers were run down by passing trains in crossing. In one case, there seemed no specific omission by the company, and the court held them not liable; in the other case,28 the gates were partly open, contrary to the statutes, and the court refused to set aside a verdict against the company.

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§ 134. 1. The conduct of a railway train is not strictly matter of science perhaps. Its laws are not so far defined, and so exempt from variation, as to be capable of perfect knowledge, like *those of botany and geology, and other similar sciences, or even those of medicine and surgery perhaps, whose laws are subject to more variation.1 But they are nevertheless so far matters of skill and experience, and are so little understood by the community generally, that the testimony of inexperienced persons in regard to the conduct of a train, on a particular occasion, or under particular circumstances, would be worthy of very little reliance. They might doubtless testify in regard to what they saw, and what appeared to be the conduct of the operatives, but those skilled in such matters might, as experts in other cases are

27 Stubley v. London & N. W. Railw., Law Rep. 1 Exch. 13.

28 Stapley v. London B. & So. Coast Railw., L. R. 1 Exch. 21.

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Quimby v. Vermont Central Railw., 23 Vt. 394, 395.

allowed to do, express an opinion in regard to the conduct of the train, as shown by the other witnesses, and how far it was according to the rules of careful and prudent management, and what more might, or should have been done, consistently with the safety of the train, in the particular emergency.2 But where the plaintiff, who claimed damages on account of the misconduct of a flagman at a railway crossing, had attempted to prove that he was a careless and intemperate person, it was held that the company might show that he was careful, attentive, and temperate, and that these facts might be proved by those who had seen his conduct, and need not be shown by experts.3

2. But a railway company, when sued for misconduct, are not bound, in the first instance, ordinarily, to show, by the testimony of experts, that they were guilty of no mismanagement. But in the case of an injury to passengers, the rule is otherwise.*

3. And it has been said, that one who brings an action against a railway, founded upon negligence and misconduct, is not bound, in opening his case, to show, that by the laws and practice of railway companies there was mismanagement in the particular case. If he sees fit to trust that question to the good sense of the jury, he may.5

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5. But it is obvious, that in cases of this kind, although the jury are ultimately to determine, upon such light as they can obtain, and will be governed a good deal by general principles of reason, based upon experience, and that the testimony of witnesses, unskilled in the particular craft, will doubtless have a considerable influence in establishing certain remote principles, by which all men must be governed, in extreme cases, nevertheless, in that numerous class of cases, in courts of justice, which have to be determined upon a nice estimate and balance of conflicting testimony, the opinion of experienced men, in the par

* Illinois Central Railw. v. Reedy, 17 Illinois, 580, 583. Caton, J.: "The burden of proof is on the plaintiff, and it is for him to show, by facts and circumstances, and by those acquainted with the management of trains, who could speak understandingly on the subject, that it was practicable and easy to have avoided the collision, and that, in not doing so, those in charge of the train were guilty of that measure of carelessness, or wilful misconduct, which the law requires to establish the liability."

3 Gahagan v. Boston & Lowell Railw., 1 Allen, 187.

4 Post, § 176; Galena & Chicago Railw. v. Yarwood, 17 Illinois, 509.

♪ Quimby v. Vermont Central Railw., 23 Vt. 394, 395.

ticular business, must be of very controlling influence. And it is very well understood, that generally, the fact that such evidence is not produced, unless the omission is explained, will tend to raise a presumption against the party.

Murray v. Railroad Company, 10 Rich. (S. C.) 227. As we find few cases in the books bearing upon this general question, in regard to railways, we may refer to analogous subjects where the question has arisen. Nautical men may testify their opinion, whether, upon the facts proved by the plaintiff, the collision of two ships could have been avoided, by proper care on the part of defendants' servants. Fenwick v. Bell, 1 C. & K. 312. So, too, in regard to the proper stowage of a cargo. Price v. Powell, 3 Comst. 322. So a master, engineer, and builder of steamboats, may testify his opinion, upon the facts proved, as to the manner of a collision. The Clipper v. Logan, 18 Ohio, 375; Sills v. Brown, 9 C. & P. 601.

It has been held, that even experts may not be called to express an opinion, whether there was misconduct in the particular case on trial, as that is the province of the jury, but that they may express their opinion upon a precisely similar case, hypothetically stated, which seems to be a very nice distinction, and which is combated in a very sensible note to Fenwick v. Bell, 47 Eng. Com. Law R. 312. The opinion of Lord Ellenborough, in Beckwith v. Sydebotham, 1 Camp. 116, 117, that where there is a matter of skill or science to be decided, the jury may be assisted by the opinion of those peculiarly acquainted with it, from their professions and pursuits, seems to us more just and wise.

We have always regarded the testimony of experts, as a sort of education of the jury upon subjects in regard to which they are not presumed to be properly instructed. The distinction we make upon the subjects, where we allow the testimony of experts, and where we do not, shows this. The nearer the testimony comes to the very case in hand, the more pertinent and useful. And the finesse of keeping the very case out of sight by name, but describing it by * allegory, in asking the opinion of the experts, is scarcely equalled by the device of certain species of birds, who imagine themselves invisible to others because they are so to themselves. It is not unlike asking a witness in regard to the genuineness of handwriting, in dispute before a jury, and which is to be determined by them, and this is always allowed without question. And in all such questions, there is likely to be so much disagreement among the experts, as to leave the jury a sufficient duty to perform. But the more common practice is according to the rule in Sills v. Brown.

In an action against a railway company for carrying their road through plaintiff's pasture, throwing down his fences, and scattering, frightening, and injuring his cattle, it was held that an experienced grazier is competent to testify as an expert in regard to the state of cattle and to causes affecting their weight and health on a supposed state of facts. But that such person could not express an opinion upon the facts proved in the particular case, on the point to be determined by the jury. Baltimore & Ohio Railw. v. Thompson, 10 Md. 76.

In Webb v. Manchester & Leeds Railw., 4 Myl. & Cr. 116; s. c. 1 Railw. C. 576, a point involving questions of practical science being in dispute, and the testimony conflicting, it was referred to an engineer for his opinion, and his conclusion,

in regard to the facts, adopted and made the basis of the order of court. In the case of Seaver v. Boston & Maine Railw. Co., 14 Gray, 466, after several experts called by the plaintiff had testified, upon a statement of facts and circumstances of the accident, what in their opinion threw the cars from the tracks, the defendants were permitted to ask a machinist who had been connected for many years with railways, and with the running of cars and engines upon them, and who was in the cars at the time of the accident, and saw the occurrence and all the attending circumstances, what in his opinion threw the cars from the track, and it was held no ground of exception.

We had occasion, in our book on Wills, pt. 1, § 15, pp. 135–159, to examine the subject of the testimony of experts upon the question of mental soundness in all its bearings. Many of the principles there laid down, and especially the course of practice, will apply to the general bearing of this class of testimony in other cases.

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§ 135. 1. WE have before stated, in general terms, the power of the directors of the company to bind them. The board of directors ordinarily may do any act, in the general range of its business, which the company can do, unless restrained by the charter and by-laws.2 Notice to one of a board of directors, in

1 Ante, § 113; Post, § 164.

2 Whitwell, Bond & Co. v. Warner, 20 Vt. 425. But the general agent of such a company, who performs the daily routine of the business of the company, cannot bind them beyond the scope of his ordinary duties. Hence the law agent of a joint-stock insurance company cannot bind the company by his false representations as to the state of its finances. Burnes v. Pennell, 2 H. L. Cas., Clark & F. (N. s.) 497. But where the directors of the company make such false representations as to the state of the finances of the company to enhance the price of stocks, they are liable to an action at the suit of the person deceived, or to criminal prosecution; and transfers of stock, made upon the faith of such representations, will be set aside in equity. Ib. Lord Campbell said, it

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