Chicago, Rock Island & Pacific Railway Co. v. Sheldon

6 Kan. App. 347 | Kan. Ct. App. | 1897

McElroy, J.

This was an action to recover for personal injuries received by defendant in error in a railway accident. Judgment in the lower court was for defendant in error, who was plaintiff there.

Doctor Hoover, a witness for plaintiff below, referring to an examination of defendant in error made some weeks after the accident, said:

“I ascertained from the examination of the man, from the history that I got from the family, and from what I saw of the man, that he was suffering from spinal trouble.”

hearsay,incompeient. Plaintiff in error moved that this be stricken out because it was incompetent, irrelevant, and hearsay. This motion was denied. A physician testifying as an expert should not be allowed to base ins opinion ot the condition oi the party x J to any extent upon the statements of third persons. It does not appear what the witness learned from talking with the family, nor to what extent the family gave him a history of the man or his ailment. The motion of the Railway Company to strike out the evidence should have been sustained, and the evidence excluded from the jury. Heald v. Thing, 45 Me. 392. Rogers’s Expert Testimony, § 47. Weatherbee’s Ex’rs v. Weatherbee’s Heirs, 38 Vt. 454.

Complaint is made that the court erred in admitting evidence of Doctor Wilcox, as follows :

2 witness not ai ' lowed to state conclusions. “ Q,. Doctor, in reply to this question I would ask you whether an injury received at a railway wreck, wherein the patient was frightened, jammed up and badly shocked, the patient having no kidney trouble known to him prior to “ •*. that time, then being affected by a general breaking down of the nervous system, pains along the lumbar region of the back, slight pains in the abdomen, bowels constipated, bladder partially paralyzed, so as to retain the urine, loss of sensation in the lower extremities, impaired circulation, the lower limbs inclined to shrivel up, cold feet, I will ask you now whether or not, in your opinion, a patient in that condition, then, who three weeks after having been in a railway wreck which I have described, whether or not the ailment which I have mentioned was the direct result of the injury in the railway wreck ? A. That was my opinion at the time.

“ Q,. What is your opinion now, doctor, on the hypothetical question ? Would the wreck be. the cause of the ailment ? A. Yes, I believe so.”

And the following evidence of Doctor Hoover :

‘ ‘ Q. What in your opinion would be the cause ? A. Probably from the injury he received at the time of the wreck.”

And the following evidence of Doctor Kamp.

“ Q. Now, doctor, I will ask you if, in your opinion, the shock and bruises and jamming of the patient mentioned, received in a railway wreck mentioned, would be the cause of such ailments, in your opinion, he not having passed through any other shock, fright or bruises prior to that time nor had any known kidney trouble? A. If he had no other disease, if there were no symptoms of any other disease prior to that time, yes.”

The court permitted the witnesses to assume the province of the jury, and to determine whether the condition of the defendant in error and his ailments were the direct results of the collision in question. This was a matter exclusively for the jury to determine and not a matter to be proven by expert testimony. The jury was as competent to determine this question from all the evidence as were the witnesses, and they should have been permitted to do so without being required to take the opinions of the witnesses in preference to their own. It might have been proper to have asked the witnesses what would be the probable effect of a bruise or jar or injury upon the head or body, or whether or not the condition of the defendant in error resulted from a wound or injury of some kind. It would have been proper in the case at bar to have asked the witnesses whether or not, in their opinion, the condition of Sheldon might have resulted from injuries received in the collision, or, whether or not the injuries could have been caused by the collision. But the questions as put called ou the witnesses to determine the ultimate fact; that is, whether or not the condition of the defendant in error was the direct result of the collision, or was caused by the collision. This was for the determination of the jury. This evidence should have been excluded. Jones v. President, etc., of Portland, 88 Mich. 598; State v. Rainsbarger, 74 Iowa, 196.

Complaint is made that the court erred in sustaining the objection made by the defendant in error to the following question asked Doctor Mann : “Taking into consideration that the plaintiff is now suffering from kidney trouble, what would be your opinion as to what he was then suffering from — taking into consideration his present condition at that time V’

3. Evidence -wrongly excluded, admitted later. This evidence was competent and should have been admited. The sustaining of the objection was not reversible error ; questions embracing all that was included in this question were put to the witnesses by counsel for the Railway Company and answered fully. C. B. U. P. Rld. Co. v. Andrews, 41 Kan. 370; Thorne v. National Bank, ante, p. 194.

Complaint is made that the court permitted the defendant in error to show as items of damage the amount he paid for a farm hand from the date of the accident to the trial, and also the value of the board of this hand and of his horse.

é' eíementfof damages. This evidence was intended for the purpose of enhancing the damages, and was incompetent. Sheldon was not damaged by the employment and payment of a farm hand. He evidently received the services of such farm hand in consideration for the money paid and for the board of the hand and the horse. If he was, by the negligence and carelessness of the Railway Company, injured to such an extent as to render him unable to perform labor, he could recover the value of his time, but could not recover the amount paid by him in employing another person to perform his work. To allow him to recover for the loss of his time as well as expenses incurred in employing a farm hand, would be to allow double damages. This the law does not permit. This evidence should not have been permitted to go to the jury.

It appears from an examination of the evidence, the verdict, and the comments of the court in overruling the motion for a new trial, that this evidence must have had considerable influence with the jury. The court, in overruling the motion for a new trial, said:

“In this case the jury has probably “given the plaintiff the full benefit of the evidence, and, as Mr. Dolman says, if the injury had been occasioned by a farmer, the verdict would probably not have been as large as it is ; probably not more than one-half. That plaintiff is not in a sound physical condition, is very evident; that this condition is not wholly attributable to the injury received from the railroad, is equally evident. If I had' been trying the case without a jury, I probably should not have allowed as large an amount as the jury have allowed. Still, plaintiff evidently has sustained some damage and injury from the road, for which he is entitled to recover in this case.”

The judgment must be reversed and the cause remanded for a new trial.