Chicago Union Traction Co. v. Roberts
82 N.E. 401
Ill.
1907
Check Treatment
Mr. Justice Dunn

delivered the opinion of the court:

Counsel for appellants have wasted labor in discussing the evidence to the extent of nearly two-thirds of their printed argument. On the record no question is presented to this court as to the liability of appellants or the amount of the damages unless error has intervened in receiving or rejecting evidence or in the instructions to the jury.

It is claimed that there is a variance between the declaration and the proof, inasmuch as the declaration charges that the plaintiff was thrown against the seats and other parts of the car, while it is said that the evidence is that he shot directly from his seat to the pavement without striking any part of the car. The plaintiff himself was the only witness who testified on this point, and he said that' the car ran into something, jerked, and threw him against the seat and out; that, he struck something on the way to the ground,—he thought the upright post opposite him, at the end of the seat. This evidence was not variant from the declaration.

Dr. Golden, a physician who treated appellee on the day of his injury and for some months thereafter, was examined as a witness and testified at length as to the injuries from which appellee was suffering imjnediately after the accident and his symptoms and condition to the time of the trial. He was then asked a hypothetical question, assuming that appellee was a healthy, normal man previous to the accident, and that he was thrown and received the injuries which the witness saw and was in the condition which the witness saw from that time on, and concluding with the inquiry what the witness’ opinion would be as to whether the appellee’s present condition was due to traumatism or to other causes. Appellants objected to the question on the ground that it invaded the province of the jury, but their objection was overruled and the witness answered, “It was undoubtedly due to the injuries which he received.” It is insisted that it was error to overrule the objection to this question.

It is not controverted that appellee was thrown from the car by its sudden stoppage and was injured. There was much evidence as to the extent of his injuries and as to the various ailments with which he has since been afflicted. He claims to have continually suffered, as a result of his injuries, from a complication of diseases which permanently disable him, while appellants insist that his injuries were comparatively slight and their effect was merely temporary. The question objected to did not concern the cause of appellee’s injuries. It was in regard to the relation between his assumed injury and his condition as observed by the witness. It is not the province of an expert to act as judge or jury. He cannot be called upon to decide a question of fact. The object of a hypothetical question is to obtain the opinion, upon a subject not within the knowledge of men of ordinary experience, of one who by a previous course of habit or study has acquired a knowledge of that subject. The hypothetical statement of facts must be taken to be true. The opinion is permitted to be given to enable the jurors to draw the inferences from the evidence which their want of knowledge would otherwise prevent. In this case the question was whether the appellee’s condition was due to traumatism or other causes. It was a question for the jury to determine, but it was impossible for them to answer without hearing the opinions of physicians. These opinions did not invade the province of the jury. (City of Chicago v. Bork, 227 Ill. 60; City of Chicago v. McNally, 227 id. 14; City of Chicago v. Didier, id. 571.) It is entirely immaterial whether the witness testified that the injury was the cause of the condition, or that the injury was sufficient to cause the condition or might have caused it. In any event, the testimony was merely the opinion of the witness, given, as such, upon a stat'e of facts assumed to be true. It still remained for the jury to determine the facts, and the opinion was nevertheless an opinion only, whether it states what did cause the condition or what might cause it. The question may be asked in either form. City of Decatur v. Fisher, 63 Ill. 241; Camp Point Manf. Co. v. Ballou, 71 id. 417; Louisville, New Albany and Chicago Railway Co. v. Shires, 108 id. 617; Illinois Central Railroad Co. v. Latimer, 128 id. 163; City of Chicago v. Didier, supra.

The testimony here under discussion is not like that held incompetent in the case of Illinois Central Railroad Co. v. Smith, 208 Ill. 608, where the witnesses were asked, from their examination of the injured foot, to state how the injury must have been made. That evidence was held incompetent for three reasons: “First, that the matter involved no particular science, skill or knowledge in order to formulate the opinion given; second, that the matter could have been concisely and lucidly described to the jury; and third, that the testimony, though in form an opinion, was in reality the statement of the very fact the jury was to determine.”

Dr. Price heard Dr. Golden’s testimony and was afterward called as a witness. Having answered a hypothetical question, he was then asked whether, taking into account the testimony he had heard along with the hypothetical question, the condition testified to was due to traumatism or disease and whether it was permanent. It is insisted that this question was incompetent because based, in part, upon the testimony which Dr. Price had heard. The witness was not called upon to decide any controverted question but was asked to assume the truth of the testimony he had heard. The question was competent, because it assumed the truth of the facts testified to and asked the opinion of the witness on that state of facts. (Schneider v. Manning, 121 Ill. 376; Pyle v. Pyle, 158 id. 289; City of Chicago v. Didier, supra.) The objection to the question was the general one that it called for incompetent testimony. If it was thought the basis for the hypothetical question was improper, the objection should have been pointed out so that the improper matter might have been eliminated. The special objection not having been made on the trial cannot be insisted upon here. Elgin, Aurora and Southern Traction Co. v. Wilson, 217 Ill. 47.

The remaining objections to evidence we have carefully considered in connection with the record and will not discuss in detail. We do not think any substantial error occurred in the rulings of the court in regard to the evidence.

The refusal of the third and fourth instructions was proper in view of the sixteenth instruction, which took from the jury the consideration of the manner of construction of the man-hole and man-hole cover. There was no evidence in regard to doctors’ bills or attorneys’ fees, and the fifth and sixth instructions were therefore rightly refused.

The judgment is affirmed. Judgment aiñrmed.