2 Lans. 206 | N.Y. Sup. Ct. | 1869
1 think the court erred in overruling the defendant’s objection to the question put to the witness, Dr. Campbell, “ Do you believe from what you have heard of the testimony in this case that this arm has been the subject of consecutive luxation ?”
In the first place it appeared that the witness had not heard
But the question was obnoxious to a more general and serious objection. It called upon the witness' for a conclusion from all the evidence he had heard in the case without assuming any facts as established thereby. The witness was therefore permitted to accept such of the evidence as he believed to be true and reject such as he did not deem reliable. This was to permit to him the province and prerogative of the jury.
In this case it was a theory of the defence that the dislocation of the plaintiff’s elbow had been once reduced, but that subsequent to the discontinuance of the defendant’s visits the parts had been again displaced by “ consecutive luxation.” Whether such was the case or not, was precisely the question for the jury. To aid them in deciding that question it was competent and proper to adduce the opinion of a witness skilled in the science of anatomy and the art of surgery. But such an opinion can be formed by one. who has had no knowledge of the case itself only upon an assumption of certain facts as established on the trial; and .the question in the present instance left it to the witness to say what facts were established by the evidence which he had heard. This, it is clear, was the province of the jury.
As I understand the rule, a question of this character, to be admissible, must always be an hypothetical one, based either upon the hypothesis of the truth of all the evidence given in the case, or upon an hypothesis, specially framed, of certain facts assumed to be proved for the purpose of the inquiry. Such a question leaves it for the jury to decide in the first case whether the evidence in whole or in part is true or not, and in the second case whether the .particular facts assumed are or are not proved.
Such a question calls for a purely scientific opinion, which may be properly considered by the jury, provided they find the facts to be established as assumed.
Such I understand to be the effect of the authorities upon this question, and if I am right the judgment must be reversed and a new trial granted.
Judgment reversed and new trial granted, costs to abide event.