169 Wis. 408 | Wis. | 1919
Lead Opinion
Owing to the claim of such serious injury to plaintiff’s eyes and the large amount of damages asked by him the case was necessarily tried very thoroughly. The result is a printed case of over 600 pages, more than 200 of which are devoted to the medical testimony of the nine doctors that were called, five by the plaintiff and four by the defendant. This statement is made not by way of criticism, but as a reason why no detailed statement of the evidence bearing upon the merits will be included in the opinion. There is some conflict in the evidence as to the cause of the injury and a sharp conflict as to its degree, plaintiff claiming total
Errors in the admission of testimony, in the submission of the special verdict, and in refusing to give requested instructions are urged, and these will be considered in so far as they seem material.
Dr. Beebe was called as an expert by the defendant and plaintiff admitted his qualifications to testify as such. On cross-examination he.was asked by plaintiff’s counsel if he considered Oppenheim an authority on optic atrophy. On receiving a qualified negative answer and the statement that witness had read a part of Oppenheim’s works, he was asked this question:
“Do you remember having read at some time in your reading the following language ? ‘Great interest is attached to the visual disturbances which are caused by dazzling, by intense illumination of the retina, and especially as recent experience has shown by the effect of light from the electric arc, electric ophthalmia. The affection, which is usually of the nature of scotpma, develops with pain in the eye, photopho-bia, blepheroclonus, etc., as a rule it usually rapidly disappears, but it may develop into blindness. The result of the ophthalmoscopic examination is negative, or it may show spots in the macular region. And for that authority cite Upto. And less often marked atrophy.’ Now, having your attention called to that passage from Oppenheim in his chapter on Visual Disorders, will you, do you, recall ever having read that before ?”
The defendant: was required by the court to produce for the inspection of plaintiff’s attorneys the report of the accident made by the conductor at the end of his run, nearly an hour and a half after the accident. The report was received in evidence over timely objection made by defendant, and its efforts to have it struck out and to have the jury instructed to disregard it proved unavailing. Its reception in evidence was error. Lehan v. C. & N. W. R. Co., ante, p. 327, 172 N. W. 787. It was no part of the res gestes. Steinhofel v. C., M. & St. P. R. Co. 92 Wis. 123, 65 N. W. 852. It was not admissible as an admission of a state of facts or of negligence on the part of the defendant, for an agent of a corporation cannot make such an admission. Randall v. Northwestern T. Co. 54 Wis. 140, 142, 11 N. W. 419; Kamp v. Coxe Bros. & Co. 122 Wis. 206, 99 N. W. 366; Garske v. Ridgeville, 123 Wis. 503, 102 N. W. 22; Zentner v. Oshkosh G. L. Co. 126 Wis. 196, 105 N. W. 911. Such reports of accidents are furnished by the agent for the purpose of giving the principal information relative thereto. They are often, as in this case, based in part or largely upon what others tell the maker of the report has happened. If the production of such information gathered by one party can be compelled, there is no reason why the other party cannot compel the production of information gathered by the adversary. In this case plaintiff’s attorney stated that he did not know what use he wished to make of the report until he had examined it. Defendant offered to produce it if the
Dr. Churchill was called as an expert witness by plaintiff, whom he had examined since the action was begun but had never treated, and he was allowed to give an opinion that plaintiff was totally blind in his left eye, basing such opinion in part upon his examination and in part upon subjective symptoms or upon what plaintiff had told him.' This was error. Stewart v. Everts, 76 Wis. 35, 44 N. W. 1092; Abbot v. Heath, 84 Wis. 314, 54 N. W. 574; Stone v. C., St. P., M. & O. R. Co. 88 Wis. 98, 106, 59 N. W. 457. A physician who treats a patient may give an expert opinion based upon the result of his examination and statements made to him by the patient, but not one who does not treat the patient. The reason for the application of different rules to the two cases lies in this: When a patient submits himself to treatment he does so for the purpose of curing himself of the malady afflicting him, and he is desirous to do so, and the presumption is that he will tell the truth to the doctor. If he does not, he knows that not only may a cure not be effected but he may seriously jeopardize his health by giving false information or withholding important 'information. But when he goes to a doctor for examination for the purpose of having him testify but not treát him, he runs no risk by giving false information and the inducement may be to hide rather than' to reveal the truth.
The more serious question arising from the errors just noted is, Has the reception of the incompetent evidence collectively or separately affected the substantial rights of the defendant within the meaning of sec. 3072m, Stats. 1917, which provides that no judgment shall be reversed unless in the opinion of the court, after an examination of the entire action, the error complained of has affected the substantial rights of the person seeking to set aside the judgment? The
As to the report of the conductor, the only substantial item contained in that and not testified to by him on the trial was
It is not so easy to show how the reception of the contents of Oppenheim’s work and the opinion of Dr. Churchill as to the permanence of plaintiff’s injury was neutralized or rendered practically harmless by the evidence of others. There was a sharp conflict in the expert medical testimony as to the extent and permanence of plaintiff’s injury. The fact, however, that there was a serious dazzling explosion or flash on the car in question and that plaintiff sustained a serious injury to the left eye and probably to the right one also, is clearly established. He was on the witness stand a great many times during the protracted trial and he testified he was blind; the jury saw him and had an opportunity to note his conduct and appearance and to more correctly judge of his credibility than we have. He said he was totally blind; and the jury no doubt believed him. The medical testimony was in direct conflict even with the incompetent evidence out. In such a situation we cannot say that the result would probably have been different if the errors in the admission of evidence had not occurred, or that the result reached is clearly wrong.
The ruling that the admission in evidence of the incompetent testimony was nonprejudicial disposes of the trial court’s failure to grant the motion to strike it out and of its failure to grant the request for instructions to disregard it.
Criticism is made by counsel for defendant that questions 1 and 2 were in the alternative or disjunctive form, and having been answered in the affirmative the verdict is defective because some of the jurors may have concluded there was
The jury awarded plaintiff $25,000 damages, and we are asked to reduce them because excessive. It appears that plaintiff was about twenty-eight years old at the time of the accident and had been earning $780 a year; that he was of studious and industrious habits and ambitious to get on in life. Cases are cited to us by both sides bearing upon the question and showing a great latitude in the assessment of damages for similar injuries. They are not very helpful in disposing of the question because of the great latitude shown by them. It may be true that the present value of an annuity for plaintiff based upon an earning power of $780 a year is only $11,927.76, but that measures only a portion of his damages — the destruction of his earning power, assumed to be stationary. It takes no account of his medical expenses, pain, and suffering and his diminished capacity for enjoying life, as well as the added care and attention that must be given him by members of his family or others. The amount assessed for the injuries sustained cannot be held excessive.
The motion to remand the case to the trial court with leave
The assignments of error not specifically treated herein are deemed not well taken.
By the Court. — Judgment affirmed.
Dissenting Opinion
(dissenting). Upon the testimony in this case, the errors pointed out in the majority opinion-and what appears in the record subsequent to the trial I am satisfied that there should have been a new trial.