92 Mich. 243 | Mich. | 1892
This case was before this Court in January, 1891, and • is reported in 84 Mich. 676, to which reference is made for a statement of the facts. On the second trial plaintiff recovered a judgment, and defendant appeals.
It appears that for some time after the injury plaintiff was at the Wayne county poor-house. On the trial plaintiff offered in evidence the following poor-master’s ticket:
“Detroit, July 28, 1888.
“ To the keeper of the Wayne countyJiouse:
“Please admit John Fox to the Wayne county poorhouse, and provide for his necessities as a city charge.
“John F. Martin, “Superintendent of the Poor.”
Upon the back of this ticket is the following indorse.ment:
“This man was ill with arsenical poisoning at Harper Hospital, from which he was discharged on June 80. Shortly after he was affected with paralysis and anmsthcesia of the feet, due to the same cause, and, being unable to earn his living, is now sent to you for treatment. “ H. Erickson, City Physician.”
Defendant’s counsel objected to the admission of both ticket and indorsement, but both were admitted and read in evidence. Neither was admissible. The fact
Plaintiff had, before his employment by defendant, been employed by the Acme White Lead & Color Works, in grinding dry color and vermilion, which contained a large percentage of lead, and it was insisted by defendant that plaintiff’s troubles were attributable to lead, rather than arsenical, poisoning. Dr. Erickson was not called, and no reason was given why he was not, except that upon the previous trial he was called by defendant, and it is urged by plaintiff’s counsel that he was presumably hostile. The indorsement purports to be simply information sought to be conveyed by Dr. Erickson to the ■officials at the poor-house. It is urged that this information was usually entered upon the records of the poorhouse, and was admissible as a part of such records. There is no statute requiring the city physician to give such information or providing for its record. If ■entered at all, it was entered upon the official registry, undoubtedly kept of each patient on his admission. The rule is that such registrations are not, in general, evidence of any facts not required to be 'recorded in them, .and which did not occur in the presence of the registering officer. Thus a registry of marriage or of baptism is evidence only of that fact. 1 G-réenl. Ev. § 493. The mention of the child’s age in the register of christenings is not proof of the day of its birth, to support a plea of infancy. Burghart v. Angerstein, 6 Car. & P. 690. Regarding certificates given by persons in official station, the rule is that, if the person was bound to record the fact, the proper evidence is a copy of the record; but as
Plaintiff called as a witness one Dr. Zimmerman, who was the practicing physician in charge of the Wayne county poor-house, who stated that—
“He became acquainted with the plaintiff; that plaintiff's feet were partially paralyzed; that he did not seem to have any use of his feet to any extent; that he was in the hospital about eight months; that he had no other sickness that witness could remember; that he has paid no special attention to the subject of the effect or nature of arsenical or other poisons, but knew that arsenic and what was known as ‘blue vitriol' were deadly poisons; that he thought there was an eruption from external arsenical poisoning, and that partial paralysis, to a greater or less degree, is one of the consequences of arsenical poisoning; that when Eox came he brought with him a statement of his history, and that the paper shown was brought by Eox, and that at the time H. Erickson was. one of the city physicians of the city of Detroit.
“Q. What was your diagnosis ? Have you any recollection now of it at the time you received him?
“A. Partial paralysis.
“Q. Arising from what cause?
“A. I think the cause was based upon that paper.
“Q. What did you arrive at from your inspection of it, and the information that was communicated to you by that there as a part of the history of the case ? From the history of the case, what did you attribute that paralysis to in your diagnosis?
“A. From arsenical poisoning.”
On cross-examination witness testified that “he never had a case of arsenical poisoning except this one; that he deduced his diagnosis of paralysis from plaintiff's appearance, and the cause was from the paper, and that he knew nothing about the case, except a paper that was before him, and is not in evidence.”
Defendant's counsel moved that the testimony of the witness as to the diagnosis be stricken out, but the mo
Several physicians were called as experts to give their opinions upon hypothetical questions asked as to the cause of plaintiff’s paralysis, and, from an examination of the record, it is clear that the hypothetical questions involved facts and conditions which were not supported by the testimony. In the manufacture of Paris green a quantity of sal-soda is first put into a vat. This is dissolved by steam turned in from the side of the vat, 5 or 6 inches from the bottom. The vat is about 5 feet 6 inches in height, and when the sal-soda is dissolved the* vat is about two-thirds full of sal-soda and water. The^ steam is then turned off, and the powdered arsenic is* shoveled and poured from kegs into the liquid already in the vat. After this is done, the steam is againt turned on from 25 to 40 minutes, during which time-the stirring of the mass is kept up. The quantity off arsenic put into the vat would fill it up from one to two inches. The object of the injection of the steam is to boil the mass. It is clear that in this process the steam was forced, not into or upon a quantity of dry powdered arsenic, but was injected horizontally into a mass composed of sal-soda, water, and arsenic; but the hypothetical question put waB:
“ Suppose that the man was employed to mix powder, that is, was set to work mixing a powdered stuff with steam blowing on it, until it was reduced to a sort of jelly; that a portion of his duty while it was arriving at*248 this stage was to stand above the vat, and keep stirring it, * * * to what would you attribute the condition of that man, if you ascertained that the article that he was working in had been powdered arsenic?”
“Now, doctor, if you take a quantity of powdered arsenic, and place it in a vat, and reduce it to a solution by blowing steam on it, or allowing steam to blow into it, would the force that would be necessary to heat that matter hot enough so as to become fused into some different element be sufficient to raise any of the particles, in your opinion?”
Again: “If a man went to work at the mixing and handling of powdered arsenic, by putting it in a vat and turning steam thereon until the steam and the water did form, from their coming together with the arsenic, an entirely different substance, rendering solid arsenic soluble, and that during the time that this process was going on it was the duty of the man to keep the mass stirred, * * , * and you ascertained that the contents of the vat was white powdered arsenic mixed with steam, what would you attribute the condition of this person to?”
After the usual answer, that they would attribute the condition of the man to arsenical poisoning, the witnesses replied as follows:
“ The force of the steam would be strong enough to raise portions of it and circulate it in the air, and any person standing over it could not avoid inhaling it, ■if the particles came in contact with the spongy portions of his body.”
“The fact of the process necessary to reduce powdered arsenic to a paste or gelatine, in an open vat by steam, would necessarily force particles off with the steam, which would be just as virulent as the other arsenic.”
One of plaintiff’s co-employés was called, and testified as follows:
“Q. What was said, if anything, by Mr. Abel [the superintendent] to Mr. Fox, telling him of the nature of the danger of the business?
“A. Nothing at all.
*249 “Q. Was there anything said to you? (Objected to, but answered.)”
In the former case it was held that evidence that defendant'notified other employés of the dangerous character of the common employment was inadmissible to rebut the testimony of plaintiff that he was not so informed. Equally inadmissible is the testimony of other co-employés that they were not informed> to rebut the testimony of defendant that plaintiff was so informed.
A witness connected with the Acme Works was called for defendant, who stated that the plaintiff had been discharged by that company three times for drunkenness. On cross-examination, plaintiff’s counsel asked the witness this question:
“You yourself are a total abstainer, are you not?”
Objection was interposed, but the court overruled the objection. The question was an improper one, and the court erred in admitting the testimony.
Defendant called as a witness one who, although not a physician or graduate from any medical school, had giyen a good deal of attention to chemistry, who for 15 years had been engaged in the manufacture of Paris green, haying about 100 men in his charge, and who had studied the effects upon the operation of steam arising from the compositions described. This witness was asked the following questions, all of which were objected to, and the testimony excluded:
“ Beyond that, what have any of the men under your employ, during this long term and large experience, suffered? ”
“ How many men, during all that period, employed by you, or under your supervision, in the manufacture of Paris green, have you known to be affected by the work on the Paris green, beyond an occasional breaking out on the face, as you have described? ”
“ State whether »or not you have observed any other*250 injurious effect in any case, in all your experience, as to pustulation of the face arising from working over this striking tub."
We think the testimony was competent. Cutaneous diseases affecting the exposed parts of the body, and paralysis, are not latent, and it does not require either a description of symptoms or the skill of a physician to discover their existence. One who has had an actual experience for 15 years, with 100 employés, engaged in a particular occupation, and who has had the- opportunity to observe and has made observations, is certainly competent to testify as to whether these patent results, follow such employment.
For these errors the judgment is reversed, and a new trial is ordered, with costs to defendant.
