HARALSON, J.
1. There were eight counts in the complaint averring negligence: The 1st, in the management of the train by defendant’s employes; the 2d, for failure to have the road-bed in proper condition; the 3d, in failing to have the track in proper condition; the. 1th, for having rotten or unsound cross-ties under the [589]*589rails; the 5th, for failing to have the rails securely spiked or fastened to the cross-ties; the 6th, in so constructing the track, that the rails spread when the train ran onto them; 7th, in having worn or defective rails on the track; and the 8th, the negligent management of the train by defendant’s employes. The defendant pleaded the general issue to each of these counts. On trial, the jury found a verdict for plaintiff and assessed the damages at $1,800, and judgment was rendered accordingly.
2. The 1st, 3d, 1th, 12th, 13th and 15th assignment of error, question the correctness of the rulings of the court in allowing witnesses to state, that at the embankment where the 'wreck in which plaintiff is alleged to have been injured occurred, water was allowed to stand in the ditch alongside of the road — which ditch was filled up and would not discharge water — -and in the borrow-pits from which the earth was taken in the construction of the embankment on which the road was built. This is done on the alleged ground, that the complaint did not allege any negligence in allowing water to accumulate and stand by the side of the road-bed, and that evidence of these facts was, therefore, outside the issues on which the case was tried. The 2d count, however, charged negligence in failing to have the road-bed in proper condition at or near the place where the car on which plaintiff' was riding was derailed; the 3d for failing to have the track in proper condition, and the 6th, that the track was so constructed, that 'when the train ran upon the same, the rails spread, thereby causing the derailment of the cars. The evidehce for the plaintiff tended to show, that the cross-ties of the road on the embankment where the wreck occurred, were decayed and defective, so much so that the spikes which held the rails and track-braces down to the ties, would ¡become loose and work out; that there was at that point, as some witnesses expressed it, a pretty sharp curve in the road, and the embankment was built of a black, crawfish clay, which seeped water; that the ties, from frequent passage of trains, 'would spring up and down and the water would work out at the ends of the ties on each side, and they were not firmly set in the ground. If this water, standing by and [590]*590against the road embankment tended to seep and percolate into the embankment thereby rendering it wet, causing the ties to decay, and the road-bed unsteady, and its rails and their fastenings insecure, as the evidence tended to show, such evidence was clearly competent as being within the issues. Skill and care, such as a railroad company should .exercise in carrying passengers, are not confined to mere competency and watchfulness of the employes in charge of the train, but include the track and road-bed, for the proper quality and condition of which the company is responsible. — L. & N. R. R. Co. v. Jones, 83 Ala. 376; Birmingham Un. Raihoay Co. v. Alexander, 93 Ala. 133; Mayor and Aldermen v. Starr 112 Ala. 98.
3. The witness McDougall’s evidence (the basis of the 7th, 8th and 9th assignment's of error) tended to show the evil effects of.this water standing against the road embankment. He was asked by plaintiff: “What effect would the passing of trains over that curve have when you were working there, and noticed it?” and he answered : “It kept the road-bed out of line, and it was a hard place to keep up on the line.” This question was objected to by defendant as calling for irrelevant, immaterial and incompetent evidence, and the objection overruled. The basis,'of the objection as urged in argument is, that the witness was testifying to conditions he observed, some three years before the time he was working on the road. If it -were true, that the "witness was testifying to things he observed so long before, and was merely giving his opinion as to what might have happened thereafter, from conditions then existing, the objection to his answer, without more, might have been good; but, the evidence tended to show, that the same conditions existed as to the matters to which he was deposing when the accident occurred, as at the remoter period. Besides, the witness testified, that he lived within a quarter of a mile of the scene of the accident, and had lived there for four years past; and that since the time spoken of — three years ago — he had been for a period of time in the employ of the railroad. He also stated other facts tending to show that he was familiar [591]*591with the road-bed and its surroundings; had walked over it twice within three weeks before the accident, and had taken special notice of it. It is again urged as an objection to his answer, that he was not an expert, and could not give an opinion as to these matters. The - answer to this objection as to giving his opinion as an expert is, that he ivas testifying to things he had seen and observed. I-Ie was asked only, to tell the effect the passing of trains had when he ivas working there. The language of the question did not refer to the future of the time he first observed the effect of conditions he then saw, but to the effect those conditions then had. The word “would” as employed in the question, referred to the then present time. This effect ivas a fact he might testify to, if he knew it, without any expert knowledge on the subject. For the same reasons the 8th and 9th assignments are without merit.
4. The 10th assignment questions the correctness of the rulings in allowing the witness, McDougall,- to answer the question: “How many braces ought to be put on a rail in a curve like this?” because he was not shown to be an expert. It is true he stated he was not an expert, but he also swore he had worked on a railroad for three years, off and on, doing section work, keeping up the track on the road-bed; that he had worked on this road as a section hand three years ago-; that he had acted as section foreman for fifteen days at one time on the A. (1. S. Railroad, and was trusted to put braces where he thought they were needed. The court on such evidence ruled that he had shown himself competent to ‘answer the question. Whether he was an expert or not, and competent to answer the question was the province of the court to determine, and in this there was no error. — Gulf City Ins. Co. v. Stephens, 51 Ala. 121.
5. Several 'physicians made a physical examination of the plaintiff, at the time the tidal was in progress, Dr. Heflin among the number, with the Anew of having them give their opinions as to the character of the injury plaintiff had received, if he had received any at all, and its effects on him. The plaintiff on his own examination had described the injuries he is 'alleged to have received, [592]*592and testified that fie was suffering from these injuries at the trial. Several of the physicians testified, that they could discover no objective evidences of injury such as would cause pain or trouble to the plaintiff; that they pressed different parts of the body, without complaint of tenderness or hurt, but that on the hip or lower part of his back he said there were tender spots, and when pressed on these he flinched.
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HARALSON, J.
1. There were eight counts in the complaint averring negligence: The 1st, in the management of the train by defendant’s employes; the 2d, for failure to have the road-bed in proper condition; the 3d, in failing to have the track in proper condition; the. 1th, for having rotten or unsound cross-ties under the [589]*589rails; the 5th, for failing to have the rails securely spiked or fastened to the cross-ties; the 6th, in so constructing the track, that the rails spread when the train ran onto them; 7th, in having worn or defective rails on the track; and the 8th, the negligent management of the train by defendant’s employes. The defendant pleaded the general issue to each of these counts. On trial, the jury found a verdict for plaintiff and assessed the damages at $1,800, and judgment was rendered accordingly.
2. The 1st, 3d, 1th, 12th, 13th and 15th assignment of error, question the correctness of the rulings of the court in allowing witnesses to state, that at the embankment where the 'wreck in which plaintiff is alleged to have been injured occurred, water was allowed to stand in the ditch alongside of the road — which ditch was filled up and would not discharge water — -and in the borrow-pits from which the earth was taken in the construction of the embankment on which the road was built. This is done on the alleged ground, that the complaint did not allege any negligence in allowing water to accumulate and stand by the side of the road-bed, and that evidence of these facts was, therefore, outside the issues on which the case was tried. The 2d count, however, charged negligence in failing to have the road-bed in proper condition at or near the place where the car on which plaintiff' was riding was derailed; the 3d for failing to have the track in proper condition, and the 6th, that the track was so constructed, that 'when the train ran upon the same, the rails spread, thereby causing the derailment of the cars. The evidehce for the plaintiff tended to show, that the cross-ties of the road on the embankment where the wreck occurred, were decayed and defective, so much so that the spikes which held the rails and track-braces down to the ties, would ¡become loose and work out; that there was at that point, as some witnesses expressed it, a pretty sharp curve in the road, and the embankment was built of a black, crawfish clay, which seeped water; that the ties, from frequent passage of trains, 'would spring up and down and the water would work out at the ends of the ties on each side, and they were not firmly set in the ground. If this water, standing by and [590]*590against the road embankment tended to seep and percolate into the embankment thereby rendering it wet, causing the ties to decay, and the road-bed unsteady, and its rails and their fastenings insecure, as the evidence tended to show, such evidence was clearly competent as being within the issues. Skill and care, such as a railroad company should .exercise in carrying passengers, are not confined to mere competency and watchfulness of the employes in charge of the train, but include the track and road-bed, for the proper quality and condition of which the company is responsible. — L. & N. R. R. Co. v. Jones, 83 Ala. 376; Birmingham Un. Raihoay Co. v. Alexander, 93 Ala. 133; Mayor and Aldermen v. Starr 112 Ala. 98.
3. The witness McDougall’s evidence (the basis of the 7th, 8th and 9th assignment's of error) tended to show the evil effects of.this water standing against the road embankment. He was asked by plaintiff: “What effect would the passing of trains over that curve have when you were working there, and noticed it?” and he answered : “It kept the road-bed out of line, and it was a hard place to keep up on the line.” This question was objected to by defendant as calling for irrelevant, immaterial and incompetent evidence, and the objection overruled. The basis,'of the objection as urged in argument is, that the witness was testifying to conditions he observed, some three years before the time he was working on the road. If it -were true, that the "witness was testifying to things he observed so long before, and was merely giving his opinion as to what might have happened thereafter, from conditions then existing, the objection to his answer, without more, might have been good; but, the evidence tended to show, that the same conditions existed as to the matters to which he was deposing when the accident occurred, as at the remoter period. Besides, the witness testified, that he lived within a quarter of a mile of the scene of the accident, and had lived there for four years past; and that since the time spoken of — three years ago — he had been for a period of time in the employ of the railroad. He also stated other facts tending to show that he was familiar [591]*591with the road-bed and its surroundings; had walked over it twice within three weeks before the accident, and had taken special notice of it. It is again urged as an objection to his answer, that he was not an expert, and could not give an opinion as to these matters. The - answer to this objection as to giving his opinion as an expert is, that he ivas testifying to things he had seen and observed. I-Ie was asked only, to tell the effect the passing of trains had when he ivas working there. The language of the question did not refer to the future of the time he first observed the effect of conditions he then saw, but to the effect those conditions then had. The word “would” as employed in the question, referred to the then present time. This effect ivas a fact he might testify to, if he knew it, without any expert knowledge on the subject. For the same reasons the 8th and 9th assignments are without merit.
4. The 10th assignment questions the correctness of the rulings in allowing the witness, McDougall,- to answer the question: “How many braces ought to be put on a rail in a curve like this?” because he was not shown to be an expert. It is true he stated he was not an expert, but he also swore he had worked on a railroad for three years, off and on, doing section work, keeping up the track on the road-bed; that he had worked on this road as a section hand three years ago-; that he had acted as section foreman for fifteen days at one time on the A. (1. S. Railroad, and was trusted to put braces where he thought they were needed. The court on such evidence ruled that he had shown himself competent to ‘answer the question. Whether he was an expert or not, and competent to answer the question was the province of the court to determine, and in this there was no error. — Gulf City Ins. Co. v. Stephens, 51 Ala. 121.
5. Several 'physicians made a physical examination of the plaintiff, at the time the tidal was in progress, Dr. Heflin among the number, with the Anew of having them give their opinions as to the character of the injury plaintiff had received, if he had received any at all, and its effects on him. The plaintiff on his own examination had described the injuries he is 'alleged to have received, [592]*592and testified that fie was suffering from these injuries at the trial. Several of the physicians testified, that they could discover no objective evidences of injury such as would cause pain or trouble to the plaintiff; that they pressed different parts of the body, without complaint of tenderness or hurt, but that on the hip or lower part of his back he said there were tender spots, and when pressed on these he flinched. The evidence of several of these witnesses questioned seriously whether the plaintiff suffered any serious injury in his alleged fall. Dr. Heflin testified, the plaintiff -said, that it hurt him in the hip joint when Dr. Brown would touch him hard on the foot, and when he, Heflin, had him by the foot rotating the leg around, he said it hurt him at the hip joint; that a man could be suffering from pain, or from any trouble, right where he said it hurt him, without giving any external evidences of it; that where a patient says he has pain, that is called a subjective symptom, and doctors act upon such symptoms,in diagnosing a case. The plaintiff’s counsel asked the doctor the following question: “What injuries could be inflicted on him by such a fall (being thrown around in a car and rolling from one side to the other, and having the car to turn over) as that wouldn’t give out any external evidences — the accident occurring on the 3d of August last — that would not give external evidences in that time? I am asking your opinion as an expert. As a medical man, what would you say might exist?” The defendant objected on the ground that it was improper to ask “what might have existed.” The doctor made answer, showing in his opinion, how such injuries -might exist without giving out external evidences of them. The objection made was not pertinent to the question asked. It was not inquired, “what might have existed,” -as objected, but what injuries'could have been inflicted by such a fall without showing external evidences of their existence. The fact inquired about, related to the present existence of injury, and not to what might hare existed. The evidence was clearly competent. • The case of Strohm v. R. R. Co., 96 N. Y. 305, cited by defendant’s counsel was where it -was very properly held, that consequences which are contingent, specn[593]*593lative, or merely possible, are not proper to be considered in estimating the damages to plaintiff. No such consequences were called for in the question propounded.
6. Only three of the several charges on the 1st, 6th and 8th counts of the complaint, requested by defendant and refused, are insisted on in argument — the charges being as to each count, that if the jury believed the evidence they must find a verdict for the defendant on them, respectively. These charges 'are faulty and subject to the criticism, that they were liable to convey the idea that a separate verdict as to each of these counts should be returned by the jury if they ¡believed the facts hypothesized. — M. & O. R. R. Co. v. George, 94 Ala. 201. Moreover, the jury might have been precluded from finding for the plaintiff in any event, if these charges had been given, notwithstanding under the evidence they might properly have found for Mm under other counts.
We are unable to determine that the court erred in refusing to grant a new trial.
Affirmed.