112 Neb. 441 | Neb. | 1924
This is an action under the federal employers’ liability
The allegations of negligence in the petition are that defendant failed in its duty to see that the help furnished was sufficient to handle and load the handcar so as to avoid injury to the plaintiff; failed to furnish and provide skids and appliances or ways and means of loading heavy and
The errors relied upon for reversal are: Improper activity of the trial court in the examination of witnesses and in remarks from the bench; error in excluding evidence offered by the defendant, and in the admission of improper evidence on behalf of plaintiff over objections; the giving of erroneous instructions to the jury; error in overruling defendant’s motion to instruct a verdict in its favor; and that the verdict is excessive and contrary to law.
Defendant has collected and set forth in its brief a number of rulings and remarks made by the trial judge during the progress of the trial, and assigns error committed by frequent unnecessary and improper examination of witnesses by the judge. The taking of evidence covered about six days. It is possible for a trial judge to influence the jury by his manner, by the emphasis, or lack of emphasis, placed upon his certain words, and by other intangible methods not easily described, and which cannot be reproduced upon the written page. In a case involving medical expert testimony such as this, sometimes a question or re-jury of such testimony to the facts. It is entirely proper-mark by the court aids in the proper application by the
Aside from the very material question whether the handcar was loaded in the manner detailed by plaintiff, or whether it was loaded in the manner described by the conductor, by which method no twisting or displacement of the vertebrae could occur, the principal conflict in the evidence was over the question whether the injury to the spinal cord of plaintiff was caused by a dislocation of the vertebrae in the dorsal region due to a sudden strain placed upon him by attempting to lift a heavy weight in an improper position, thus causing a hemorrhage or apoplexy of the blood vessels of the spinal cord and subsequent degeneration of the cord at the fifth dorsal vertebra, as testified to by the medical witnesses in behalf of plaintiff, or whether it was caused by a complete transverse myelitis of the cord at the fifth dorsal vertebra as a result , of syphilis, which was the opinion of the medical experts testifying on behalf of defendant. One who would read the testimony of the medical experts testifying in behalf of plaintiff would in all probability be fully satisfied and completely convinced that the degeneration of the spinal cord causing the paralysis resulted from a dislocation of the vertebrae, and would be also fully satisfied that, if the plaintiff’s
Whether the evidence sustains the verdict also depends in large measure upon whether the jury believed the testimony of the plaintiff or the testimony of the conductor and station-agent as to the manner, in which the handcar was loaded, and the testimony of a number of experienced railroad trainmen as to whether it was proper and customary to load such handcars into boxcars by the use of only three men, without skids, planks or appliances whereby the handcar might be rolled into the boxcar. There was sufficient conflict between the testimony of the two classes of witnesses upon this point to justify a verdict either, way. As to the manner in which this particular handcar was loaded, the testimony of the plaintiff was in direct conflict with that of the conductor and station-agent at Raymond who assisted in loading it. But it was the province of the jury to determine which of these witnesses was stating the facts ■ as they actually occurred. This court has not the witnesses before it and has not the same facilities
The same reasoning applies to the assignment that the court erred in overruling defendant’s motion to instruct a verdict in its favor.
Several questions are raised as to the privilege allowed confidential communications between physician and patient. At common law there was no such privilege. This rule still prevails when not changed by statute. The statutory privilege originated in a statute of New York passed in 1828. Its terms have been adopted in substance in many of the other states of the Union. Some courts have held that the statutes extending such a privilege to physicians or surgeons are remedial in their nature and should be liberally construed, while others take the view that they are in derogation of the common law, and an exception to the general rule; that the maxim, “Expressio unius est exclusio alterius,” should be applied and construed strictly; that unless the witness comes clearly within the class limited by the statute his testimony must be received, and that the burden of proving the right to the privilege is upon the person seeking to exclude the evidence. Head Camp, W. O. W., v. Loeher, 17 Colo. App. 247; Colorado Springs & I. R. Co. v. Fogelsong, 42 Colo. 841; Indiana Union Traction Co. v. Thomas, 44 Ind. App. 468; Smoot v. Kansas City, 194 Mo. 513; Springer v. Byram, 137 Ind. 15; Masons Union Life Ins. Ass’n v. Brockman, 26 Ind. App. 182; Henry v. New York, L. E. &. W. R. Co., 10 N. Y. Supp. 508; Brown v. Hannibal & St. J. R. Co., 66 Mo. 588. In former decisions this court has seemed to rule in accordance with the view last expressed, and in view of the provisions of section 8835, Comp. St. 1922, we believe it to be the proper one to take. This section provides: “Every human being of sufficient capacity to understand the obligation of an
The witness Wheeler testified that he was a former sergeant in the medical corps of the United States army, stationed on the Mexican border; that he was not a physician; that he was in charge of a prophylaxis station and infirmary, and that his duties at the prophylaxis station were performed without the supervision of the medical officer. The following colloquy occurred: “Q. Did you have occasion to give attention to Arlie W. Culver at one or more of those prophylaxis stations ? Q. (By Mr. Bartos) Were you acting under the orders or directions of the doctors? A. Yes, sir. Q. (By the Court) The medical officer? A. Yes, sir.” The question was then asked: “Q. Did Mr. Culver ever come to you personally for treatment at a prophylaxis station when there was no medical officer or physician present?” An objection made for the same reason was sustained. • The defendant offered to prove that the witness “had personal charge without the presence or supervision of any officer of the medical corps or any physician of the administration of the prophylaxis or prophy
The statute is not intended to conceal relevant facts not communicated confidentially to a physician in his professional capacity. A druggist may testify as to the kind of drugs furnished; a dentist is not within the privilege; and a professional nurse not assisting a doctor is not. Hobbs v. Hullman, 171 N. Y. Supp. 390; People v. DeFrance, 104 Mich. 563, 28 L. R. A. 139; People v. Schuyler, 43 Hun (N. Y.) 88; Deutschmann v. Third Avenue R. Co., 84 N. Y. Supp. 887; Kendall v. Grey, 2 Hilt. (N. Y.) 300; Brown v. Hannibal & St. J. R. Co., supra. The burden of establishing the privilege has not been met by plaintiff with respect to this testimony, and since whether or not plaintiff was infected with syphilis was a very material question in the case, it was prejudicial error to exclude the offered proof.
It is assigned that prejudicial error was committed by the court when it sustained objections to the testimony of Miss Clara Rhodes as being a privileged communication. Miss Rhodes was superintendent of nurses at Dr. Fall’s hospital' at' the time plaintiff was taken there. Preliminary inquiries were made as to the facts surrounding her duties in the hospital. Defendant offered to prove by this witness that she was present when a specimen of blood was taken from the plaintiff by Dr. Fall; that she sent this to the state laboratory at Lincoln, Nebraska, together with
At the time the Nebraska statute was enacted the profession of graduate or registered nurse had scarcely come into being. Observing that the same reasons which caused the extension of the privilege to physicians applied with equal force to professional nurses, New York and Arkansas have amended their statutes so as to include “a professional or registered nurse.” But the legislature of Nebraska has not included such persons within the privileged class, and a nurse, merely as such, is not within such class. Homnyack v. Prudential Ins. Co. of America, 194 N. Y. 456. A different rule prevails where the nurse acts as one of the agents or assistants of the physician in charge. A nurse is often necessarily present at conversations between the patient and the doctor with respect to the ailment or condition of a patient, and little good would be subserved if the lips of the doctors might be sealed by the statute as to such conversations but the nurse or attendant might freely testify to all that was said and everything that was dope. The purpose of the law 'is to protect the right of privacy, and while its scope should not be unduly extended, its very intention might be completely thwarted by the admission of testimony from this class of witnesses. In such case, if she received or heard confidential communications from a patient “necessary and proper to enable him (the physician) to discharge the functions of his office according to the usual course of practice,” thefi the privilege extended to the physician extends equally to the nurse. 5 Wigmore, Evidence (2d ed.) secs. 2321, 2380-2383. There was no error in this ruling. ■
In the direct examination of the plaintiff, he testified, in substance, that up to December 17, 1920, his physical condition was nearly perfect, that he had malarial fever for about a month when he was on' the Mexican border, in the army, and that he recovered. He was then asked, “Did you ever suffer with anything else that you can recall at this time? A. No, sir.” On cross-examination he was asked, “Isn’t it a fact, Mr. Culver, that you were treated for a chancre by a medical officer while down on the border?” Plaintiff objected to this question as not proper cross-examination, and the objection was sustained. If the witness had answered in the affirmative, it would have tended to contradict his evidence in chief and to support the opin
. The negligent acts complained of in the petition were the failure to furnish sufficient help and the negligent order of the conductor to load the handcar in the manner in which the plaintiff testifies he was directed to lift. A majority of the court take the view that, since the expert medical testimony in behalf of plaintiff is to the effect that “lifting on the handcar in the ordinary way would not produce any lesion whatsoever,” and that the injury was “due to sudden extension with rotation of a vertebra in the dorsal region, which was due to a sudden strain placed upon him by overweight in an improper position,” the question whether there was a negligent order and whether this was an unusual and extraordinary risk, which the plaintiff did not assume, were questions for the jury.-
The remaining questions are concerned with whether there was error in the giving of certain instructions to the jury, and whether the verdict is excessive and the result of passion and prejudice. It must be noted here that defendant tendered no instructions to the court presenting, its particular theory of the case. In this connection it must be said that, even if some of the instructions were slightly inaccurate, where the trial court has not had the opportunity of being informed as to what the contention of the complaining party is as to the points of law involved, this court will not examine a charge with such a critical mind as where the trial judge has had the benefit of the views of such party as to the proper legal principles applicable.
In stating the issues to the jury, the trial judge gave, to the length of nearly six typewritten pages, a substantial copy of the pleadings in the case. Some of the statements in the petition are not supported by proof. We have often criticised the practice of copying lengthy pleadings into the instructions given by the court, and have said that
Since the question may arise upon a new trial, it is suggested that in computing the damages recoverable for loss of earning capacity in actions for damages for personal injuries, under the federal employers’ liability act, adequate allowance should be made for the earning power of money, and when future payments are to be anticipated the verdict should take into account the present value of the annual payments of which plaintiff in such a case, or his beneficiaries, have been deprived. Damages for pain and suffering are not to be awarded as upon the basis of present worth based upon the life expectancy of the plaintiff, but as a gross sum presently payable. Sweat v. Hines, 107 Neb. 1; Chesapeake & O. R. Co. v. Kelly, 241 U. S. 485.
In view of the errors at the trial herein discussed, and of the fact that some of the other complaints made may be obviated on another trial, the judgment is reversed and the cause remanded.
Reversed.
Note — See Appeal and Error, 3 C. J. p. 858, sec. 758; Damages, 17 C. J. p. 907, sec. 196; p. 926, sec. 222; p. 1059, sec. 361 — Master and Servant, 26 Cyc. pp. 1095, 1478; Witnesses, 40 Cyc. pp. 2383, 2388.