166 S.E. 848 | W. Va. | 1932
Plaintiff, an unmarried woman forty-four years of age, obtained a judgment against defendant company for personal injuries alleged to have been received by reason of the collision of the interurban car in which she was riding, with the rear end of the car immediately ahead.
The negligence declared on was that the motorman of the rear car operated the same at such a rapid rate of speed and in such close proximity of the car preceding it, that by reason *87 thereof he was not in a position to avoid a collision after the operator of the leading car had been compelled to make an emergency stop.
Considerable evidence was introduced on plaintiff's behalf to the effect that prior to the accident she was healthy, worked, took long walks, and apparently enjoyed life, and that since that time she has had only partial use of her left arm, suffers extreme pain in the back and head, and is unable to work. She contends that her present condition is traceable to the accident, while the defendant attributes it to arthritis or rheumatism. A greater part of the evidence is devoted to this issue.
Dr. Boger, the family physician, was consulted a few days after the accident, and some ten days thereafter had an x-ray taken, and, as a result thereof, sent plaintiff to a chiropractor for the purpose of adjusting the vertebrae. This witness testified that the plaintiff was suffering from a wrench of the ligaments which held the bones of the spine in position; and that while the bones have gradually been brought back into alignment, such injuries are always troublesome — being between permanent and semi-permanent. He also stated that such affection leaves innumerable complaints of a neurasthenia nature behind it. Some months after the accident, and prior to the trial, Dr. Goff made an examination, with the aid of x-rays, and, while finding no broken bones, abnormalities or evidence of physical injury, he diagnosed the trouble as traumatic neuresthenia, which he stated is permanent in persons over forty. His conclusion was reached after syphilis, rheumatism and malingering had been considered and eliminated.
The chief assignment of error goes to the court's refusal of defendant's several motions for physical examination of plaintiff, the same to be conducted by physicians of defendant's selection, to be approved by the court. It appears from the record that plaintiff, over the period June 4th to September 3, 1929, submitted to a number of examinations by Drs. Widemeyer, Davis and Boice.
Dr. Davis, who examined plaintiff at the latter's residence on June 4, 1929, could find no evidence of injury other than complaint of pain on pressure over the area of the dorsal spine. He testified that he saw plaintiff five times between the 4th *88 and the 14th of June, making brief examinations on some of his visits. On June 7, 1929, Dr. Boice took three x-rays: (1) trunk of the body; (2) dorsal spine A. P.; and (3) profile of the vertebrae. The last picture, according to Dr. Boice, showed lipping in the anterior margins in several of the thoracic vertebrae. Dr. Davis testified that this condition of the vertebrae indicated arthritis, commonly called rheumatism; and both he and Dr. Boice were of opinion that it had taken nine to twelve months for the condition revealed by the x-ray to develop. Dr. Davis stated that the only things upon which a physician can base a diagnosis of neuresthenia are the patient's complaints; that traumatic neuresthenia is a diagnosis that doctors make when they find no pathology; and that arthritis has the same symptoms, except doctors find a pathology. Dr. Widemeyer due to Dr. Davis' absence from the city, was secured by defendant company and made several calls between June 16th to 26th. In an examination on June 16th Dr. Widemeyer found no injury to neck and shoulders, and after a study of the x-rays taken by Dr. Boice, diagnosed plaintiff's complaint as arthritis or rheumatism of the spine. This witness stated that chiropractic treatment, such as prescribed by Dr. Boger, would have a tendency to impair and prolong an arthritic condition.
All the foregoing evidence on behalf of defendant company tends simply to contradict the testimony of plaintiff's witnesses. According to the defense, there was a lipping of the vertabrae. Plaintiff's testimony in effect negatives such condition. What else could an examination reveal in this particular? Further testimony in such regard would be merely cumulative — would not tend to show a stronger case. InPerkins v. Traction Company,
Three of the errors assigned relate to the admission of evidence of lay witnesses regarding the condition of plaintiff's health prior to and following the accident. One testified in effect that plaintiff was in good health and enjoyed life prior to the accident, while another stated that she had a happy disintent *89
position. A third was permitted to state that plaintiff is now an invalid and helpless. Were the foregoing statements properly admitted? These were statements of fact. It is true that they were to some extent conclusions of fact observed by the witnesses; but not all conclusions of fact of non-expert witnesses are inadmissible in evidence. The test of such admissibility is this: Is it clear that the jurors were or could have been as fully and as exactly furnished with the data which formed the basis of the conclusions of the witnesses as the latter were. If so, the conclusion is inadmissible in evidence; if not, it is admissible. Wigmore on Evidence, secs.
On direct examination of Dr. Goff, a witness for the plaintiff, the trial court, over objection, permitted the following question and answer: "Q. Doctor, after you took the history of the case, state whether or not in that history you obtained any information as to whether or not she was suffering from pains in the back and in the head, or in the shoulders and in the head? * * * A. In taking the history of this patient, she said that she had been in good health and working for the past year up until an accident had occurred which, she stated, was on May 27, 1929, on a street car. She said she worked five days after the accident with considerable pain — about five days with considerable pain but continued her work, then she consulted a physician. She said that following this accident she had considerable pain in her head, the base of the skull and neck, in both shoulders, more particularly the left, and in the back down to the lumbar region. The pain was not so severe in the lumbar region and in the pelvis as it was in the shoulders and back."
The foregoing testimony is attacked as being violative of the rule which precludes a party from giving evidence of declarations made not under oath to bolster up and confirm statements made on trial under oath. Citing, Chicago, etc. R.Co. v. Rowell,
In the well considered case of Cronin v. Fitchburg L.Street R. Co.,
Defendant complains of the giving of plaintiff's instructions Nos. 4 and 5. Instruction No. 4 reads as follows: "If you believe from the evidence that the Plaintiff, Ivy Curfman, on the 27th day of May, 1929, became a passenger on one of *92 Defendant's cars for hire, and that the car in which the Plaintiff, Ivy Curfman, was a passenger, ran into and collided with another car of the Defendant, and as a result of said collision the said Plaintiff, Ivy Curfman, was injured without any fault on her part, the Plaintiff, Ivy Curfman, thereby makes out a prima facie case of negligence against the Defendant, Monongahela West Penn Public Service Company,and places upon it, the Defendant, the burden of proving by apreponderance of evidence that the accident resulted from acause, known or unknown, which could not have been foreseen orprevented by the exercise of reasonable care, vigilance andforesight on behalf of the Defendant Company."
It is maintained on behalf of defendant company that the placing upon it "the burden of proving by a preponderance of the evidence that the accident resulted from a cause," etc., is not the law. A like criticism is directed at No. 5. These instructions purport to represent the doctrine res ipsaloquitur. There are many unguarded statements to be found in cases in which the court was not directly considering the question of relationship between the rule and the burden of proof, that imply, or at least suggest, that the rule res ipsaloquitur when applicable, has the effect to shift the burden of proof, without observing the distinction between the different senses in which the term "burden of proof" is used, i. e., the burden of going forward with the evidence, and the burden in the sense of the risk of non-persuasion. There seems to be no real dissent from the proposition that the rule res ipsaloquitur, when applicable, does not have the effect to shift the burden of proof, as distinguished from the burden of evidence — of the burden of proof in the sense of the risk of non-persuasion, as distinguished from the burden of proof in going forward with the evidence, — in cases in which the court consciously had that relationship before it and was deliberately considering the point. It is obvious that the instructions involved are out of harmony with the modern and orthodox view above stated, if interpreted as casting upon the defendant the burden of satisfying the jury by the greater weight of the evidence that there was no negligence. Had the instructions merely told the jury that the burden of proof was upon the defendant, they might readily have been interpreted in the sense of the burden merely *93
of going forward with the evidence, although an instruction in that form is objectionable unless the court explains that the expression "burden of proof" is not used in this connection in the sense of the risk of non-persuasion. The practical question here is whether instructions 4 and 5 are so drawn as to mislead the jury. The possibility of actual prejudice to the defendant from their giving lies within a comparatively narrow range. Instruction No. 4 is practically that laid down by Sackett, Vol. 2, section 1796, which is supported by Pittsburgh C. St.L. R. Co. v. Thompson,
Objection was made on motion to set aside the verdict that counsel for plaintiff made certain slanderous statements in his closing argument before the jury to the prejudice of defendant. This matter was made a part of the record by a separate bill of exceptions. As appears from the records, no objection was made at the time the several statements were *94
made. "Remarks of counsel in an argument to the jury, regarded as improper and harmful to the opposite party, should be at once objected to, and the trial court given an opportunity to rule on the objection, and if possible counteract the effect thereof upon the minds of the jury, else the error will be regarded as waived, if afterwards urged as ground for setting aside the verdict and for a new trial." Given v. Diamond ShoeCo.,
Other errors regarding the admission of evidence, refusal of instructions, etc., not specifically dealt with, have been carefully considered by the court, and no reversible error found therein.
We are of opinion that the plaintiff, in view of all the evidence, has made a case sufficient to support the jury verdict. And so believing, affirm the judgment entered thereon.
Affirmed.