McCLELLAN, J.
It was, of course, competent to prove by experts, for the purpose of rebutting the idea that the injury to plaintiff’s arm was of a permanent nature, and thus reducing the damages to be assessed by the jury, that what appeared to be a continuing disability could be entirely relieved by a surgical operation; but whether the expert witness, who testified that the operation he described would probably, but not certainly, result in a cure, but that it would be attended with some danger to life and intense pain, would himself, if similarly afflicted, submit to the operation, was a matter entirely outside of the case. The test is not a fair one. There might be very many considerations conducive to the witness’ submission to the danger and suffering of the operation which would not apply to the plaintiff, and vice versa. The necessities and power of endurance of the one might be much greater than of the other; and the fact that the witness would, or would not, undergo the ordeal, under like circumstances, could throw no light upon the .practicability and probability of a successful issue of the experiment on the plaintiff. The court properly refused to allow Dr. Gaston to answer the question whether he would submit to the operation if his arm were in the condition of the plaintiff’s.
[215]*215It is manifest that the proposed testimony of the witness Robertson “I think they were all out of the car before it turned over,” was a mere conclusion of the witness — an opinion based upon certain facts stated by him. — and not a statement of his recollection in the premises. He testified that after the áccident he went to the car in which plaintiff had been riding to assist the passengers in getting out, found no one in there but a lady and that a man could not have gotten out after the accident without assistance. Hence his conclusion and opinion —not recollection at all — that all other passengers, including the plaintiff, must have made their escape before the car overturned, because, he argues, they could not have done so after-wards. This evidence was properly excluded.
There was no error in the charges of the court to the effect that “the law required the highest degree of care and dilligence and skill by those engaged in the carriage of passengers by railroads, known to careful, diligent and skillful persons engaged in such business.” This is the universal doctrine of the courts and text writers.—Searles Admr. v. K. & O. R'y. Co., 37 Am. &. Eng. R. R. Cas., (W. Va.) 179; L. & N. R. R. Co. v. Snyder, Ib. 137; s. c. 117 Ind. 435; 10 Ain. St. Rep. 60; Notes to Irelson v. So. Pac. R’w. Co., 44 Am. & Eng. R. R. Cas. 319; L. & N. R. R. Co. v. Ritter, 28 Am. & Eng. R. R. Cas. 167, 170; N. Y. L. E. & W. R'w. Co. v. Dantetery, 6 Amer. & Eng. R. R. Cas. (N. Y.) 139; P. R. R. R. Co. v. Anderson, Ib. 407 ; B. S. O. & B. R. R. Co. v. Raibout, 21 Amer. & Eng. R. R. Cas. (Ind.) 466; Topeka City R'wy Co. v. Higgs, 5 Am. St. Rep. 754; Smith v. St. P. City R'w. Co., 36 Am. & Eng. R. R. Cas. 310; Dodge v. B. & B. St. R'y Co., 12 Am. St. Rep. 541; Treadwell v. Whittier, 80 Cal. 575; s. c. 13 Am. St. Rep. 175; Hutchinson on Carriers, §§ 503, 799-801; Thompson on Carriers of Pass’g., p. 175, et seq.', 2 Am. & Eng. Encyc. of Law, p. 745; 2 Wood R’w. Law, p. 1095; L. & N. R. R. Co. v. Jones, 83 Ala. 376; Ga. Pac. R'w. Co. v. Love, 91 Ala. 432; 8 So. Rep. 714.
The authorities present equal unanimity to the proposition that where a passenger receives injuries from the breaking down of the carrier’s vehicle, from the derailment of a car, from collisions, and the like, occurrences which ordinarily would not take place but for some negligence on the part of the carrier, the prima facie presumption is that the injury was the result of the carrier’s negligence; and in an action therefor, the plaintiff, having shown that he was a passenger and that he was injured by the derailment, for instance, of the car in which he was being transported, he is, upon this and without more, entitled to recover the damages thereby sus[216]*216tained, unless the defendant, in rebuttal of this prima facie presumption, reasonably satisfies the jury that the derailment was not due to any negligence, and could not have been prevented by the exercise of the highest degree of care, skill and diligence on the part of the carrier. Authorities supra. Thompson on Carriers, pp. 131, et seq., 2 Wood R’w Law, 1096; Am. & Eng. Encyc. of Law, pp. 768, et seq., B. & O. R. R. Co. v. Weightman, 29 Graft. (Va.) 431; Central R. R. Co. v. Sanders, 73 Ga. 513; N. 7. L. E. & W. Ry. Co. v. Seybolt, 18 Am. & Eng. R. R. Cas. 162; Hipsley v. K. C. S. J. & C. B. R'y Co., 27 Am. and Eng. R. R. Cas. 287 and note; Street Railway Co. v. Leonhardt, Ib. 194; E. S. R. R. Co. v. Timmons, 40 Am. & Eng. R. R. Cas. 998, and notes; Stokes v. Salstonstall, 13 Peters, 181; Railroad Company v. Pollard, 22 Wall. 341. The cases of Ga. Pac. R'y. Co. v. Hughes, 87 Ala. 610, and L. & N. R. R. Co. v. Reese, 85 Ala. 497, to which our attention has been invited in this connection, are not in point. The parties injured, and who were plaintiffs in those actions, were not passengers of the defendant companies; and the principles we have been considering had no application in either of them. ’
The trial court correctly stated the law, as to what facts made out'a prima facie case for the plaintiff, entitling him to recover, and as to the measure of proof necessary to overturn the presumption of negligence growing out of and resting upon the facts adduced in the first instance by the plaintiff. The special objection urged to the charges on this part of the case is, that the3 authorized a verdict for the plaintiff if the evidence, aside from the presumption, was in equipoise on the question of defendant’s negligence. We understand this to be the law. Otherwise, the presumption would exert no influence in the case. If there is no evidence of defendant’s negligence except the fact of derailment, or, which is the same thing in legal effect,' the evidence as to negligence, aside from the derailment, is equally balanced, there is nothing to rebut Has prima facie presumption of a want of due care, skill and diligence which that fact imports, and upon it the plaintiff would be entitled to a verdict. To rebut and overturn the presumption, the defendant must affirmatively satisfy the jury that it was not guilty of negligence, as charged by the court; and this in no sense can be said to be done where the evidence is in such equipoise on the point as not to impress the minds of the jury one way or the other.
. On the tendencies of the evidence found in this record the jury might have concluded either that the stiffening of plaintiff’s arm was caused b3 the injury received in the railwa3'' [217]*217accident, or by the injury previously received at the saw mill> and that, while the last injury did not produce the stiffness, or the stiffness would have resulted from the first, yet, the old wound was re-opened and aggravated by the hurt received on the cars, and the pain and suffering increased and medical attention necessitated thereby. So finding, it was their duty to give the plaintiff damages resulting from this aggravation -of the original injury; and the charge of the court in this connection was unexceptionable.
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McCLELLAN, J.
It was, of course, competent to prove by experts, for the purpose of rebutting the idea that the injury to plaintiff’s arm was of a permanent nature, and thus reducing the damages to be assessed by the jury, that what appeared to be a continuing disability could be entirely relieved by a surgical operation; but whether the expert witness, who testified that the operation he described would probably, but not certainly, result in a cure, but that it would be attended with some danger to life and intense pain, would himself, if similarly afflicted, submit to the operation, was a matter entirely outside of the case. The test is not a fair one. There might be very many considerations conducive to the witness’ submission to the danger and suffering of the operation which would not apply to the plaintiff, and vice versa. The necessities and power of endurance of the one might be much greater than of the other; and the fact that the witness would, or would not, undergo the ordeal, under like circumstances, could throw no light upon the .practicability and probability of a successful issue of the experiment on the plaintiff. The court properly refused to allow Dr. Gaston to answer the question whether he would submit to the operation if his arm were in the condition of the plaintiff’s.
[215]*215It is manifest that the proposed testimony of the witness Robertson “I think they were all out of the car before it turned over,” was a mere conclusion of the witness — an opinion based upon certain facts stated by him. — and not a statement of his recollection in the premises. He testified that after the áccident he went to the car in which plaintiff had been riding to assist the passengers in getting out, found no one in there but a lady and that a man could not have gotten out after the accident without assistance. Hence his conclusion and opinion —not recollection at all — that all other passengers, including the plaintiff, must have made their escape before the car overturned, because, he argues, they could not have done so after-wards. This evidence was properly excluded.
There was no error in the charges of the court to the effect that “the law required the highest degree of care and dilligence and skill by those engaged in the carriage of passengers by railroads, known to careful, diligent and skillful persons engaged in such business.” This is the universal doctrine of the courts and text writers.—Searles Admr. v. K. & O. R'y. Co., 37 Am. &. Eng. R. R. Cas., (W. Va.) 179; L. & N. R. R. Co. v. Snyder, Ib. 137; s. c. 117 Ind. 435; 10 Ain. St. Rep. 60; Notes to Irelson v. So. Pac. R’w. Co., 44 Am. & Eng. R. R. Cas. 319; L. & N. R. R. Co. v. Ritter, 28 Am. & Eng. R. R. Cas. 167, 170; N. Y. L. E. & W. R'w. Co. v. Dantetery, 6 Amer. & Eng. R. R. Cas. (N. Y.) 139; P. R. R. R. Co. v. Anderson, Ib. 407 ; B. S. O. & B. R. R. Co. v. Raibout, 21 Amer. & Eng. R. R. Cas. (Ind.) 466; Topeka City R'wy Co. v. Higgs, 5 Am. St. Rep. 754; Smith v. St. P. City R'w. Co., 36 Am. & Eng. R. R. Cas. 310; Dodge v. B. & B. St. R'y Co., 12 Am. St. Rep. 541; Treadwell v. Whittier, 80 Cal. 575; s. c. 13 Am. St. Rep. 175; Hutchinson on Carriers, §§ 503, 799-801; Thompson on Carriers of Pass’g., p. 175, et seq.', 2 Am. & Eng. Encyc. of Law, p. 745; 2 Wood R’w. Law, p. 1095; L. & N. R. R. Co. v. Jones, 83 Ala. 376; Ga. Pac. R'w. Co. v. Love, 91 Ala. 432; 8 So. Rep. 714.
The authorities present equal unanimity to the proposition that where a passenger receives injuries from the breaking down of the carrier’s vehicle, from the derailment of a car, from collisions, and the like, occurrences which ordinarily would not take place but for some negligence on the part of the carrier, the prima facie presumption is that the injury was the result of the carrier’s negligence; and in an action therefor, the plaintiff, having shown that he was a passenger and that he was injured by the derailment, for instance, of the car in which he was being transported, he is, upon this and without more, entitled to recover the damages thereby sus[216]*216tained, unless the defendant, in rebuttal of this prima facie presumption, reasonably satisfies the jury that the derailment was not due to any negligence, and could not have been prevented by the exercise of the highest degree of care, skill and diligence on the part of the carrier. Authorities supra. Thompson on Carriers, pp. 131, et seq., 2 Wood R’w Law, 1096; Am. & Eng. Encyc. of Law, pp. 768, et seq., B. & O. R. R. Co. v. Weightman, 29 Graft. (Va.) 431; Central R. R. Co. v. Sanders, 73 Ga. 513; N. 7. L. E. & W. Ry. Co. v. Seybolt, 18 Am. & Eng. R. R. Cas. 162; Hipsley v. K. C. S. J. & C. B. R'y Co., 27 Am. and Eng. R. R. Cas. 287 and note; Street Railway Co. v. Leonhardt, Ib. 194; E. S. R. R. Co. v. Timmons, 40 Am. & Eng. R. R. Cas. 998, and notes; Stokes v. Salstonstall, 13 Peters, 181; Railroad Company v. Pollard, 22 Wall. 341. The cases of Ga. Pac. R'y. Co. v. Hughes, 87 Ala. 610, and L. & N. R. R. Co. v. Reese, 85 Ala. 497, to which our attention has been invited in this connection, are not in point. The parties injured, and who were plaintiffs in those actions, were not passengers of the defendant companies; and the principles we have been considering had no application in either of them. ’
The trial court correctly stated the law, as to what facts made out'a prima facie case for the plaintiff, entitling him to recover, and as to the measure of proof necessary to overturn the presumption of negligence growing out of and resting upon the facts adduced in the first instance by the plaintiff. The special objection urged to the charges on this part of the case is, that the3 authorized a verdict for the plaintiff if the evidence, aside from the presumption, was in equipoise on the question of defendant’s negligence. We understand this to be the law. Otherwise, the presumption would exert no influence in the case. If there is no evidence of defendant’s negligence except the fact of derailment, or, which is the same thing in legal effect,' the evidence as to negligence, aside from the derailment, is equally balanced, there is nothing to rebut Has prima facie presumption of a want of due care, skill and diligence which that fact imports, and upon it the plaintiff would be entitled to a verdict. To rebut and overturn the presumption, the defendant must affirmatively satisfy the jury that it was not guilty of negligence, as charged by the court; and this in no sense can be said to be done where the evidence is in such equipoise on the point as not to impress the minds of the jury one way or the other.
. On the tendencies of the evidence found in this record the jury might have concluded either that the stiffening of plaintiff’s arm was caused b3 the injury received in the railwa3'' [217]*217accident, or by the injury previously received at the saw mill> and that, while the last injury did not produce the stiffness, or the stiffness would have resulted from the first, yet, the old wound was re-opened and aggravated by the hurt received on the cars, and the pain and suffering increased and medical attention necessitated thereby. So finding, it was their duty to give the plaintiff damages resulting from this aggravation -of the original injury; and the charge of the court in this connection was unexceptionable.—L. N. A. & C. R’y. Co. v. Snyder, 10 Am. St. Rep. 60, and note; Owens v. Kansas City R'w. Co., 33 Am. & Eng. R. R. Cas. 524, and note; L. & N. R. R. Co. v. Jones, 83 Ala. 376.
There was no evidence in the case as to any pecuniary loss resulting to the plaintiff from inability to pursue his avocations in consequence of the injury complained of. It appears that he was general manager of a corporation engaged in the saw mill business, and received a salary for his services in that capacity. He was prevented by the injury from performing” those services for a month or two, but it nowhere appears that his salary was not paid, or was diminished to any extent, for that period. Neither does it appear that he in any other way sustained any money loss from the loss of this time. Non eonstat, but that during this period, and notwithstanding his disability, he received fully as much as he would have done had he not been disabled at all. Yet a charge of the court, to which a special exception was reserved, assumes that he was personally damaged by this loss of time, and authorizes the jury to include in their verdict damages, not only for pain and suffering, physician’s bills, permanent inconvenience and depreciation of his capacity to earn a livelihood resulting from the stiffening of his arm, but also for the time lost from his employment. This part of the charge was manifestly bad, and we are unable to see how its tendency to prejudice the defendant could have been met and cured by a qualifying instruction which appellee insists the appellant should have asked. The only possible cure would have been in its withdrawal from the jury, and' this action the defendant sufficiently invoked by excepting to it. We can not see that it operated no injury to the defendant. It was an error which must work a reversal of the judgment.
Mental- suffering can not be dissociated from physical pain. Where the latter is found the former is implied. The law furnishes, and in the nature of things can furnish, no standard by which to measure and compensate for either in money. The question of compensation must be submitted to the jury, who, in the exercise of a sound discretion guided by their [218]*218views of the evidence, are to return a verdict for such sum as they may deem just, not in excess of the amount sued for. The charge given for plaintiff asserts no more than this. If the discretion is abused and the verdict excessive, it may be set aside by the court.—Sutherland on Damages, p. 711; 5 Am. & Eng. Encyc. of Law, p. 54; W. U. Tel. CGo. v. Broeschi, 15 Am. St. Rep. 843; Phillips v. S. W. Railway Co., L. R. 5 C. P. Div. 78.
The charge requested by defendant was well refused. It would have required a verdict for defendant on proof of due care, diligence and skill of its trainmen, and notwithstanding others of its employés may have been guilty of negligence causing the injury.
Reversed and remanded.