186 P. 50 | Or. | 1920
*571 “Q. State whether or not you ever visited her at the hospital while she was there?
“A. Yes, sir, within just about half an hour I judge after she was up there my brother came up to our house. * *
“Q. Who is your brother?
“A. Irvin Baker. And I asked him if he would go with me to the hospital to see this woman and he said yes and we went up and I went in and asked her if I could do anything for her. She seemed kind of cross at me but her mother was not. She was very friendly with us, and I* said to her if we had been going fast I said you would have been hurt real bad. She said if you had been going fast you would have been past when I got there and I told her to stay there as long as she wanted to and I would see that it was paid. I also told Dr. Parker the same. I told him to wait on her just as long as she needed him.
‘ ‘ Counsel for plaintiff moves to strike out all that answer of the witness as not tending to prove or disprove any of the issues of the case and incompetent.
‘ ‘ The Court: So far as the testimony of Dr. Parker is concerned the testimony is allowed. The motion is allowed.
“Q. Is this something you told the woman herself?
“A. Yes, sir.”
It will be observed that the answer of the witness is really a narrative of three different conversations with three different persons, for it tells about: (1) Her talk with her brother; (2) her conversation with the plaintiff while at the hospital; and (3) her statement to Dr. Parker. The defendants contend that the wording of the motion included all the answer of the witness and that the jury must have understood from the language of the court that the entire answer, including the alleged statement of the plaintiff that ‘‘if you had been going fast you would have been past when I got there” was stricken out. The plaintiff claims, on the other
*573 “Mrs. Hoskins asked how she was and she told her, and she says it is a good thing we were driving slow or you might have been hurt much worse, Mrs. Hoskins said to Mrs. Caldwell, and Mrs. Caldwell kind of raised up in bed a little and looked around and she said ‘Well if you had been driving faster you would have been by before I got there.’ ”
The plaintiff testified that “the car struck me and knocked me down and ran over me, and I went between the wheels” and “I was rolled over and over under the car.” R. T. Hales and Charles Daniels were standing on the parking in Court Street in front of the former’s house when the accident occurred, and, according to their testimony, they reached the plaintiff before any of the defendants were able to get out of their car and go back to where the plaintiff was lying. The plaintiff was found “lying almost on her back, a little bit on her left side in the mud.” Hales and Daniels said that the place where they found plaintiff was 2 feet west of the middle line of the street and 27 feet north of the edge of the pavement; and that the rear of the car was 35 feet north of the place where they found the plaintiff.
Hales testified that after the plaintiff was carried into his house she “complained of being sick at her stomach.” There was evidence from which the jury
“And I was hurt inside I knew, but I didn’t know how bad. I felt as though I was tore loose inside some place, and I thought my head was broken open or that my head was broken off my neck and my elbows was bruised and scratched up and skinned and my knees, my clothing' on my knees was cut, and my stockings and my underwear was cut and tore, and my knees were all skinned up and I was black and .blue from the back of my head down the right side”; and “I was in terrible agony.”
When asked to describe “the effects from that injury at the present time” the plaintiff testified as follows:
“My side hurts me, my rib hurts me, and my side in there hurts me, and I can’t walk very fast or very much because my side hurts me and my rib and side all the way up here; my rib is broken and it bothers me all the time.”
Mrs. Belinda Collins, who nursed the plaintiff, testified that the back of plaintiff’s head was bruised and that she “seemed to suffer so much from her,head down to her shoulders to her waist line, that seemed to be her main trouble, and pain in the side here.”
Dr. Parker looked plaintiff “over slightly” at the Hales house; but after her removal to the hospital he made a thorough examination and did not discover “any injury to the spinal cord or column rather, or to the ribs”; and when asked “if she had had a severely broken rib at that time, or an injury to the spinal column would your examination have disclosed it?” He answered thus: “Possibly it would, yes, sir. I would imagine if it had been very serious.”
“I got the history of the case somewhat, and what observation I could observe at the time, and found, first I noted what I term nervous shock, judging it from her depression and weakness, for what I could see no physical cause for, and in addition to that I found her very sore at a number of points, especially the right side; and on examination I found what I classed at that time as a broken rib, the eighth rib was broken in the axillary line. The condition at the head of the rib and vertebrae from which it comes was too tender at that time to make a complete examination and all my information of that was gotten by later examinations and at a subsequent time when I got the tenderness out so I could make the examination. The spine was twisted between the eighth and ninth vertebrae and it is a twist that still remains.”
The motion for a new trial which the defendants filed and the court denied was based upon affidavits to the effect that a few minutes before the jury returned the verdict the attorneys for the defendants learned of a rumor that the plaintiff had caused an X-ray photograph to be taken; that there was no opportunity to verify the rumor until after the verdict was received; that afterwards upon making inquiry the defendants ascertained that on June 22,1918, the plaintiff went to Dr. Boy den, of Pendleton, who on that date took an X-ray photograph of her spinal column and ribs, and that “said photograph showed that there had never been any injury to the spine and ribs of plaintiff”; and that after the photograph was taken Dr. Boyden “informed plaintiff personally that she had not sustained any injury to her spine or ribs.”
The verdict of the jury forecloses debate as to whether the defendants were or were not guilty of negligence as charged in the complaint. The jury could not have found for the plaintiff without having first decided that the defendants had been negligent; and, therefore, the plaintiff was entitled to a verdict for some amount of money if she was injured at all. We need not and do not attempt to decide the extent of the injuries sustained by the plaintiff, and yet we may fairly infer, from the fact that the verdict was for the plaintiff, that the jury believed the testimony of Hales and Daniels, who for aught that appears in the record were disinterested witnesses, when they said that the plaintiff was lying in the mud 27 feet from the pavement upon which she was walking when first struck by the automobile, and that the car, which the driver testified was stopped “as soon as possible,” was 35 feet north of the place where the plaintiff was found. In other words, notwithstanding the fact that the driver of the automobile applied the brakes promptly upon discovering the presence of the plaintiff, she was thrown and rolled and dragged at least 27 feet and the car was not stopped until it had gone 35 feet farther or a total distance of 62 feet from the pavement. The mere statement of these facts at once suggests inevitable injury to the plaintiff in some degree, and, in the light of all the testimony, it would be difficult to
The X-ray examination was not made until June 22, 1918, or 6 months after the date of the injury. The X-ray photograph was not made a part of the record nor exhibited to the trial judge. There is no affidavit by Dr. Frank Boyden, notwithstanding the fact that plaintiff testified as a witness in her own behalf and by doing so consented that the physician might testify as a witness: Forrest v. Portland Ry., L. S. P. Co., 64 Or. 240 (129 Pac. 1048). While we do not intend to decide whether the trial judge could have compelled the plaintiff to submit to an examination upon the application of the defendants, yet we may with propriety note the fact that the plaintiff was not requested to permit physicians chosen by the defendants to examine her condition, and, so far as the question of injury was concerned, the defendants were apparently willing to rest their whole case on the testimony of Dr. Parker and one of the nurses at the hospital. Dr. Hoisington did not attempt to testify as to the extent to which any rib was broken. The plaintiff was a witness in her own behalf and she was cross-examined. The defendants had ample opportunity to inquire as to whether or not any other physician had examined her and whether an X-ray photograph had been taken; and yet no such inquiries were made. In view of the fact that the defendants did not take full advantage of the opportunities offered by cross-examination and in view of the other facts shown by the record, we do not think that
Affibmed.