Earle v. New York Central & Hudson River Railroad

235 Mass. 61 | Mass. | 1920

Carroll, J.

The intestate, Benjamin M. Earle, was injured while a passenger on one of the defendant’s trains in the South Terminal Station, Boston. There was evidence of the defendant’s negligence and a verdict was returned for the plaintiff. The exceptions relate to the exclusion of certain questions put to the plaintiff’s medical expert by the defendant, — it being the contention of the plaintiff that her intestate suffered from a disease known as hysterical blindness, caused by the injuries received; and of the defendant, that he did not suffer from blindness and that his claims were not genuine.

Dr. Edward T. Taylor, in direct examination, testified that he examined the intestate on several occasions, and that the accident was, in his opinion, sufficient cause for the visual disturbance complained of. On cross-examination he was asked: “Supposing, Doctor, he had gone down to some place in North Carolina, and told them he could not see; that he was blind, and that as a matter of fact they saw that he was shaving himself when no one was — when he thought no one was around, or reading, his newspaper, writing letters, or shooting birds, or jumping across drains, making his way through forests, — wouldn’t the hysterical element in that — wouldn’t your belief in the hysterical element in his case be somewhat shaken?” This question was excluded, and the defendant excepted. He was ,then asked, “Assuming, Doctor, that you knew that he had deliberately misrepresented his condition of blindness, or failure to see, with a purpose, would that affect your opinion in the case as to the .existence of hysteria?” This also was excluded, subject to the defendant’s exception. The witness was then further cross-examined: “Well, Doctor, if you knew, as a matter of fact, that the man at that time was able to take aim at ducks or quail, and bring them down, after shooting them, would not that affect your belief in the existence of hysteria? ” To the exclusion of this question the defendant also excepted.

On redirect-examination Dr. Taylor testified that with hysterical patients there is an inclination to exaggerate and a patient suffering from this disease could at times see as a normal person could. On recross-examination the doctor’s attention was directed to the various acts testified to by the witnesses, and when asked if these things would be consistent with hysterical blindness, answered that they would not while he was performing these acts; and that it was possible the intestate “doesn’t see a duck, and then in a second does see a duck,” and that a sudden loss or restriction of sight was a characteristic feature of this disease. On recross-examination he was further asked: “Supposing those are the facts in the case, ... do you also subscribe yourself as believing that he [[Earle] had hysterical blindness at that time? ” And his answer was in the affirmative.

When the testimony was excluded upon cross-examination, the hypothetical question assumed facts which were not then in evidence; and the discretion of the judge in refusing to allow the questions at that time is not subject to exception, unless it appears that the discretion was wrongly exercised. Anderson v. Albertstamm, 176 Mass. 87. Carroll v. Boston Elevated Railway, 200 Mass. 527. The defendant was given an opportunity upon recross-examination to inquire fully concerning the nature and extent of the intestate’s claim. It was not prevented from making any material inquiry, and even if there were error in excluding the questions, this error was cured by their subsequent admission. Chalmers v. Whitmore Manuf. Co. 164 Mass. 532. Providence & Worcester Railroad v. Worcester, 155 Mass. 35.

The defendant’s contention is that it was not permitted to ask whether or not in the opinion of the witness Earle was hysterically blind. In recross-examination the defendant was given the opportunity fully to examine him, and in fact availed itself of this opportunity. It was allowed to present completely its case and to examine fully the medical expert, and was not deprived of any of its rights in the conduct of the trial.

Exceptions overruled.