EVIDENCE ; DAMAGES. (595 



the testimony of an expert that, in his opinion, a cattle-guard 

 or barrier was necessary at a particular point, is incompe- 

 tent.^^^ Likewise, the opinion of an expert that a cattle-guard 

 could not have been maintained without injury to em- 

 ployees.^^^ In an lUinois case it was held that a witness hav- 

 ing no more knowledge of cattle-guards than is possessed by 

 ordinarily intelligent and observant farmers living by a rail- 

 road, is not competent to testify as an expert as to the sufifici- 

 ency of a guard.^®^ 



It was held in an Indiana case to be no defence that the 

 company had paid the owner for fencing the land as part con- 

 sideration for the right of way.^** But, in Georgia, an award 

 of land damages showing that the land-owner received com- 

 pensation for the increased expense of fencing, incurred by 

 reason of the construction of the railroad, was held admissible 

 in defence, as showing his liability for the consequences of 

 defects in the fences.^®^ 



A release in a right-of-way deed of aJl damages by reason; 

 of the "location, construction and operation" of the railway 

 over the lands was held not to constitute a defence to an 

 action by the grantor for damages for the killing of stock 

 owing to the failure to build a statutory fence.^^* 



A statute making a railroad company liable for all the con- 

 sequences of its failure to fence is not unconstitutionaL^^'^ 

 Nor is a statute making a company liable in double damages 



"" Amstein v. Gardner, 134 Mass. 4. 



"■ Chic. & E. I. R. Co. V. Modesitt, 124 Ind. 212; Pennsylvania Co. v. 

 Lindley, 2 Ind. App. iii. 



The burden of showing that a cattle-guard or fence would have been 

 dangerous to employees is on the company: Toledo, St. L. & K. C. R. 

 Co. ■». Jackson, 5 Ind. App. S47- 



"^ Lake Erie & W. R. Co. v. Helmericks, 38 HI. App. 141. 



"" New Albany & S. R. Co. v. McNamara, 11 Ind. 543. 



"■-Georgia R. & Bkg. Co. z/. Anderson, 33 Ga. no. 



""Stoutimore v. Chic, M. & St. P. R. Co., 39 Mo. App. 257. 

 . "^Minneapolis & St. L. R. Co. v. Emmons, 149 U. S. 364; Bielenberg 

 *. Mont. Un. R. Co., 8 Mont. 271. 



