219 Mass. 504 | Mass. | 1914
The first action is brought against the defendant to recover compensation for alleged electrical shocks received by the plaintiff on the allegation that they were caused by the defective condition of the defendant’s telephone apparatus. The second action is by the husband of the plaintiff in the first action for expenses incurred by bim in connection with his wife’s injuries the subject of the first action. The second action depends upon the same facts and rules of law as the first. .
We take up the consideration of the first. There were two counts in the first action, one based on an alleged electrical shock on January 6,1909, the other upon an alleged electrical shock on May 13, 1910.
The plaintiff testified in substance that on January 6, 1909, she went to her telephone, turned the crank, lifted the receiver to her ear as she always had done and as she did it she received a stunning blow, her hands flew up and stiffened right out, she had severe darting pains and queer feelings all over her, she got dazed and had a faint recollection of trying to get help. This was at half past nine o’clock in the morning. The next she knew she was in the sitting room and her family physician Dr. Noyes was there. She was told that it was about noon. At that time she felt very sick, was suffering very severe pain, could not move her left leg at all nor her left arm, and the fourth finger of her right hand stood out straight. Her pains were all over her body, her head ached terribly and she was put to bed and stayed there for eight weeks at least and was attended by. Dr. Noyes daily for five or six weeks.
It is not necessary to consider at length the defendant’s argument. It is enough to say that it is in the main based on the erroneous assumption that a. defendant in arguing in support of a ruling directing a verdict in his favor has a right to rely upon evidence which he has introduced. The time has long gone by when it ought to be necessary to refer to the doctrine of Lindenbaum v. New York, New Haven, & Hartford Railroad, 197 Mass. 314.
The evidence as to the occurrence of May 13, 1910, covered by the second count, was much weaker than that as to the occurrence on January 6, 1909. But taking the evidence as a whole we are of opinion that a case was made out on the doctrine of res ipso loquitur, with respect to the occurrence on that date.
As the cases must go back for new trial we take up some of the questions which may occur there. The presiding judge refused to allow a medical electrical specialist to testify on a hypothetical case, based on facts which the jury were warranted in finding, that in his opinion the cause of the physical condition into which the plaintiff was thrown on January 6 was an electrical shock. The fact that the testimony of this expert if given would have been directed to the issue which the jury had to determine did not make the hypothetical question incompetent. The judge was wrong in refusing to allow the question to be answered. On the other hand the judge was right in allowing the electrical expert to testify on a similar hypothetical question that what happened to the plaintiff was that she received a severe electrical shock. This question and answer are not open to the objection that the electrical expert was called upon to express a medical opinion. Plainly the question asked was intended to obtain an opinion as to the electrical aspects of the occurrence not as to its medical aspects. That is to say the purpose of the question was to get the opinion of an expert that upon the facts stated and looking at the matter from an electrical point of view an electrical shock took place and that it came from the defendant’s apparatus.
Under these circumstances it is not necessary to go at length
The entry in both cases must be
Exceptions sustained.