Crowley v. Appleton

148 Mass. 98 | Mass. | 1888

Devens, J.

It was an important inquiry, in the case at bar, whether the plaintiff knew that he was liable to epileptic fits, and medical experts had been permitted to testify that unconsciousness on the part of the subject of such attacks that he had had them was one of their ordinary symptoms. The experts had also testified that they had made an examination with a view of ascertaining whether the plaintiff would be likely to understand that he had these fits on the fact being communicated to him. The plaintiff’s counsel then desired to put the question, “ From your examination of the plaintiff, what do you say as to whether he is a man who could be convinced that he had epilepsy ? ” This question was excluded by the court, and to this the plaintiff excepted. Assuming that the answer would have been favorable to the plaintiff’s contention, this question was properly excluded.

The witnesses were allowed apparently to testify fully as to all the characteristics and symptoms of the disease, to the extent to which the plaintiff was affected by it, and to any circumstances showing his condition as developed by their examination. To put the question whether he would be likely to understand that he had epilepsy, was to submit to the experts whether, so far as their examination went, the plaintiff’s assertion that he did not know that he had epilepsy was likely to be true. The question whether such was the fact was for the jury, in the decision of which doubtless they could be largely aided by the testimony of experts as to the characteristics of the disease and its effect on the patient, but which they must decide for themselves. It should be observed that it does not appear what the answer of the witnesses on this point would have been, or what the plaintiff offered to prove by the evidence which was excluded by the court. The point that it is necessary that a bill of exceptions should show this has been so often determined that it hardly requires the citation of authorities to sustain it. Warren v. Spencer Water Co. 143 Mass. 155, 164.

In addition to other rulings not recited in the bill of exceptions, the court instructed the jury that it was necessary for the plaintiff to show that he was subject to fits, that he did not know this, that the defendant did, and further that the defendant “ knew or had cause to know the plaintiff did not know anything about it.” In amplifying the latter clause, the presiding judge called attention to the fact that the defendant’s knowledge of the plaintiff’s ignorance of the malady with which he was afflicted need not be proved by any direct evidence, as that he had admitted such knowledge, but might be inferred from circumstances, as from his connection and acquaintance with the plaintiff while he was thus afflicted.

While in this more full statement, the only object of which, as it would seem, was to guard the jury against any inference that there must be direct evidence of the plaintiff’s knowledge of the defendant’s ignorance, no mention is made of the defendant’s “having cause to know ” the plaintiff’s ignorance, yet what had been previously said of that is not in any way withdrawn. Nor do we perceive that it was in any way inconsistent therewith, and thus liable to produce confusion, as the plaintiff now contends. While he objected apparently to both the instruction as it originally appears and as amplified, he did not call attention to any inconsistency such as he now discovers in it, nor did he request any other instruction as to the duty of the defendant in case only that he “ had cause to know ” the plaintiff’s ignorance. He requested an instruction in place of it, which would have made the defendant responsible if the plaintiff was ignorant of his malady and the defendant was acquainted with it, without regard to the inquiry whether the defendant either knew or had cause to know the plaintiff’s ignorance of it. This request was properly refused. Exceptions overruled.