The opinion of the court was delivered by
Clark, J. :
The record shows that the amendment to the petition was allowed ‘ ‘ in order to conform the petition to the facts proved,” but, even if the original petition had contained all of the allegations of the amended petition, the jury could not, under the evidence, have found otherwise than in favor of the defendant. How, then, can it be said that the amendment conformed the petition to the facts proved? It might with much more propriety be said that the al[734]*734legations of the amended petition were clearly contro-. verted by the evidence. If the question presented by the amendment could be properly litigated in a case of this kind, the plaintiff in error ought not to complain that this amendment was allowed, as the railway company, over the objection of the defendant in error, introduced evidence tending to rebut the allegations of the amended petition. But we do not think the question presented by this amendment could be properly litigated in this action. The right of locating the railroad, the depot, the depot-grounds, the switch and passing tracks was vested by law in the railroad company in the first instance. The act of location was not void, and if it was voidable the state only could call the company to account for it* (Wood, Railway Law, § 227; Railroad Co. v. Young, 33 Pa. St. 175; Railroad Co. v. Speer, 56 id. 325; Railway Co. v. City of Joliet, 79 Ill. 25; Railroad Co. v. Dunbar, 100 id. 110; McGrath v. Railroad Co., 24 N. W. Rep. 854.)
While we think the court erred in allowing this particular amendment to the petition, and while we would not hesitate to reverse the decision of the trial court in granting a new trial, if it clearly appeared from the record that a new trial was granted solely to enable the plaintiff below to introduce evidence in support of the allegations of negligence which were not included in the original petition, still it must be remembered that the grounds set up in the motion for a new trial are that the verdict was not sustained by sufficient evidence and was contrary to law; and that errors of law occurred at the trial to which the plaintiff duly excepted; and, for aught that appears in the record, the court may have granted the new trial partly on these grounds. The defendant in error insists that the court erred both in the admission and [735]*735rejection of evidence offered at the trial, and that, although it may be said the verdict as returned is sustained by the evidence, the findings were influenced by the errors of the court in the admission of evidence. We think under the circumstances of this case, the court properly ruled that it was immaterial whether the defendant did or did not sound the steam-whistle at least three times 80 rods from the crossing. There was no proof that any one was in charge of the stock, nor as to whether they were on or off the railroad-track, or on the highway, at the time the train was 80 rods from the crossing. The failure to comply with the statute would not render the company liable to the owner of the stock injured unless it was shown that the injury resulted from a failure to comply with the statute in this respect. The supreme court of Indiana, in Railway Co. v. Green, 22 N. E. Rep. 327, in construing a statute similar to our own, said:
“It is, manifestly, not the object or purpose of the statute to require this signal for the purpose of frightening animals which may chance to stray upon the crossing, as the law does not permit cattle to run at large in the highways of the state ; and the presumption is that none will be upon the highway; and if they were would no doubt be as liable to become frightened at the approaching train as by the signals required. . . .”
The court in that case says it cannot presume, or the inference cannot be drawn,
“that the cow remained on the track notwithstanding the noise of the approaching train, the ringing of the bell, and shining headlight of the engine coming at a rapid rate of speed toward her, but if the whistle had been sounded she whould have left the track and avoided instant death.”
The plaintiff having established his ownership of the [736]*736stock, and the injury resulting from their contact with a passing engine on the right of way at a place other than a public highway, which the defendant had not inclosed with a good and lawful fence to prevent animals from being thereon, in order to defeat a recovery it devolved upon the railroad company to show either contributory negligence on the part of the plaintiff or that it was not required to inclose its track at the particular place where the animals entered its right of way from the highway. The jury found that the plaintiff was not guilty of negligence contributing to the injury.
The defendant propounded to several of its witnesses the following question :
"State whether or not the cattle-guard could be constructed or maintained at the point where the railroad intersects the south line of the L. T. Smith land, on the north side of the highway, without endangering the lives or limbs of railroad employees.”
The court, over the objection of the plaintiff, permitted the witnesses to answer the question, and an exception was saved to the ruling of the court. The jury were instructed that if the defendant located its depot at a suitable place, and it was necessary that it should construct its main track and passing track across the highway in order to properly manage. its business in the public interest, it would have a right to do so ; and that if a fence or cattle-guard along the margin of the highway could not be constructed without interfering with the safe management of the trains with reference to the employees of the railroad company, the law would dispense with such fence or cattle-guard at that place; and that it was for the jury to determine whether or not the passing track was properly constructed — was of proper length for the [737]*737convenient operation of the railroad with reference to the public interest — and if it was, that then they should determine from the evidence whether it would have been proper for the defendant, in view of all the circumstances of the case, to have constructed a fence or cattle-guard on the north side of the highway ; and that would depend on the determination of the question as to whether a fence or cattle-guard at that place would have interfered with the safe management of the trains with reference to the employees of the railway company. It will thus be seen that, under the instructions, the main question to be decided by the jury was one upon which witnesses were allowed to express an opinion. The witnesses had not shown any peculiar qualifications to testify upon this question, except that they were railroad employees, including a civil engineer, brakemen, locomotive engineers, and a station-agent. In fact, it required no special skill or training to ascertain whether a cattle-guard at the place in question would have been dangerous to defendant's employees.
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The opinion of the court was delivered by
Clark, J. :
The record shows that the amendment to the petition was allowed ‘ ‘ in order to conform the petition to the facts proved,” but, even if the original petition had contained all of the allegations of the amended petition, the jury could not, under the evidence, have found otherwise than in favor of the defendant. How, then, can it be said that the amendment conformed the petition to the facts proved? It might with much more propriety be said that the al[734]*734legations of the amended petition were clearly contro-. verted by the evidence. If the question presented by the amendment could be properly litigated in a case of this kind, the plaintiff in error ought not to complain that this amendment was allowed, as the railway company, over the objection of the defendant in error, introduced evidence tending to rebut the allegations of the amended petition. But we do not think the question presented by this amendment could be properly litigated in this action. The right of locating the railroad, the depot, the depot-grounds, the switch and passing tracks was vested by law in the railroad company in the first instance. The act of location was not void, and if it was voidable the state only could call the company to account for it* (Wood, Railway Law, § 227; Railroad Co. v. Young, 33 Pa. St. 175; Railroad Co. v. Speer, 56 id. 325; Railway Co. v. City of Joliet, 79 Ill. 25; Railroad Co. v. Dunbar, 100 id. 110; McGrath v. Railroad Co., 24 N. W. Rep. 854.)
While we think the court erred in allowing this particular amendment to the petition, and while we would not hesitate to reverse the decision of the trial court in granting a new trial, if it clearly appeared from the record that a new trial was granted solely to enable the plaintiff below to introduce evidence in support of the allegations of negligence which were not included in the original petition, still it must be remembered that the grounds set up in the motion for a new trial are that the verdict was not sustained by sufficient evidence and was contrary to law; and that errors of law occurred at the trial to which the plaintiff duly excepted; and, for aught that appears in the record, the court may have granted the new trial partly on these grounds. The defendant in error insists that the court erred both in the admission and [735]*735rejection of evidence offered at the trial, and that, although it may be said the verdict as returned is sustained by the evidence, the findings were influenced by the errors of the court in the admission of evidence. We think under the circumstances of this case, the court properly ruled that it was immaterial whether the defendant did or did not sound the steam-whistle at least three times 80 rods from the crossing. There was no proof that any one was in charge of the stock, nor as to whether they were on or off the railroad-track, or on the highway, at the time the train was 80 rods from the crossing. The failure to comply with the statute would not render the company liable to the owner of the stock injured unless it was shown that the injury resulted from a failure to comply with the statute in this respect. The supreme court of Indiana, in Railway Co. v. Green, 22 N. E. Rep. 327, in construing a statute similar to our own, said:
“It is, manifestly, not the object or purpose of the statute to require this signal for the purpose of frightening animals which may chance to stray upon the crossing, as the law does not permit cattle to run at large in the highways of the state ; and the presumption is that none will be upon the highway; and if they were would no doubt be as liable to become frightened at the approaching train as by the signals required. . . .”
The court in that case says it cannot presume, or the inference cannot be drawn,
“that the cow remained on the track notwithstanding the noise of the approaching train, the ringing of the bell, and shining headlight of the engine coming at a rapid rate of speed toward her, but if the whistle had been sounded she whould have left the track and avoided instant death.”
The plaintiff having established his ownership of the [736]*736stock, and the injury resulting from their contact with a passing engine on the right of way at a place other than a public highway, which the defendant had not inclosed with a good and lawful fence to prevent animals from being thereon, in order to defeat a recovery it devolved upon the railroad company to show either contributory negligence on the part of the plaintiff or that it was not required to inclose its track at the particular place where the animals entered its right of way from the highway. The jury found that the plaintiff was not guilty of negligence contributing to the injury.
The defendant propounded to several of its witnesses the following question :
"State whether or not the cattle-guard could be constructed or maintained at the point where the railroad intersects the south line of the L. T. Smith land, on the north side of the highway, without endangering the lives or limbs of railroad employees.”
The court, over the objection of the plaintiff, permitted the witnesses to answer the question, and an exception was saved to the ruling of the court. The jury were instructed that if the defendant located its depot at a suitable place, and it was necessary that it should construct its main track and passing track across the highway in order to properly manage. its business in the public interest, it would have a right to do so ; and that if a fence or cattle-guard along the margin of the highway could not be constructed without interfering with the safe management of the trains with reference to the employees of the railroad company, the law would dispense with such fence or cattle-guard at that place; and that it was for the jury to determine whether or not the passing track was properly constructed — was of proper length for the [737]*737convenient operation of the railroad with reference to the public interest — and if it was, that then they should determine from the evidence whether it would have been proper for the defendant, in view of all the circumstances of the case, to have constructed a fence or cattle-guard on the north side of the highway ; and that would depend on the determination of the question as to whether a fence or cattle-guard at that place would have interfered with the safe management of the trains with reference to the employees of the railway company. It will thus be seen that, under the instructions, the main question to be decided by the jury was one upon which witnesses were allowed to express an opinion. The witnesses had not shown any peculiar qualifications to testify upon this question, except that they were railroad employees, including a civil engineer, brakemen, locomotive engineers, and a station-agent. In fact, it required no special skill or training to ascertain whether a cattle-guard at the place in question would have been dangerous to defendant's employees. It is not apparent why these -witnesses could not have testified as to •the manner of the construction of cattle-guards-, the location of the tracks, the uses made of them, and .stated any other fact which would tend to show that a cattle-guard across or under the tracks in the station grounds, or switch yards, or at the particular place in qestion, •would be dangerous to employees of the railway company, and the jury, upon such testimony, would have been able to draw reasonably correct conclusions with reference thereto without the aid of the opinions of the witnesses. “If the relation of facts and their probable results can be determined without special skill or. study, the facts themselves must be given, and the jury left to draw conclusions [738]*738or inferences.” (St. L. & S. F. Rly. Co. v. Ritz, 33 Kan. 404.) In Railway Co. v. Modesitt, 24 N. E. Rep. 986, the supreme court of Indiana held that, for horses killed by getting upon the railroad-track at a crossing where no cattle-guard was maintained, the evidence of a witness that a cattle-guard could not be maintained there without injuring defendant’s employees was properly excluded, the court saying the railway company “was entitled to prove the condition of the tracks, their location, the use made of them, and like facts ; but it was not entitled to the opinion of a witness that the construction of a cattle-guard would make the use of the tracks dangerous.” In Railway Co. v. Hale, 93 Ind. 79, which was an action to recover damages for killing a horse, the evidence tended to show that the animal was killed by a freight-train on the railroad. The principal contention was whether the railroad could have properly been fenced at the place where the horse entered upon the track and was killed. The-court held that it was not competent to take the opinion of witnesses, but that the jury must be left to decide that question upon the facts proved. See, also, Bliss v. Wilbraham, 8 Allen, 564; Muldowney v. Railway Co., 36 Iowa, 462; Railroad Co. v. Zumbaugh, 39 N. E. Rep. 1058; Montgomery v. Scott, 34 Wis. 345; Stillwater v. Coover, 26 Ohio St. 520; Couch v. Railroad Co., 22 S. C. 557; Railroad Co. v. Greeley, 23 N. H. 237; City of Topeka v. Sherwood, 39 Kan. 690; City of Junction City v. Blades, 1 Kan. App. 85.
For the reasons assigned, the order allowing the amendment to the petition will be reversed, while the order granting a new trial will be affirmed.
All the Judges concurring.