184 Mo. 19 | Mo. | 1904
This is an action by plaintiff for ten thousand dollars damages alleged to have been sustained by her by stepping into a hole in a sidewalk in Kansas City, where one of the boards of which said sidewalk was in part constructed, was out and missing,
Tbe answer was a general denial and a plea of contributory negligence. Plaintiff filed reply to tbe answer in wbicb is denied all affirmative allegations therein contained.
The trial resulted in a verdict and judgment for plaintiff in the sum of eight thousand dollars. Defendant appeals.
The facts as disclosed by the record are about as follows:
Between seven-thirty and eight o ’clock on the night of March 25,1900, while plaintiff was walking east upon a plank' sidewalk on the north side of Independence avenue, about one hundred and eighty-five feet east of Tracy avenue, in Kansas City, Missouri, she stepped •into a hole in said sidewalk, fell and sustaind the injuries complained of, said hole being caused by a board, or part of a board, being missing from the sidewalk at that point. She had never at any time prior to the accident been over or upon this sidewalk, and knew nothing of its condition at the place of the accident prior thereto. The hole had been in the sidewalk for several weeks prior to the accident, during which time the sidewalk had been “shaky” so that it would “spring up” or tilt from two to fourteen inches, when a person 'Walked upon it. Prom fifteen to twenty yards east of where the accident occurred it tilted from two to three feet. The authorities of the city had notice of the condition of the sidewalk, in ample time to have repaired it before the accident.
Underneath the sidewalk at the point of accident the ground was from three to four feet below the sidewalk. Independence avenue was at the time of the accident much used by pedestrians both by day and by night.
It was about dark at the time plaintiff stepped into tlie hole. She went in up between the knee and the
Such other facts as may be thought necessary to an understanding and decision of the case will be referred to in course of the opinion.
Defendant claims that under the evidence of plaintiff she was guilty of such contributory negligence as to bar a recovery, and, for that reason, the trial court should have set aside the verdict upon the motion of the defendant. With respect to the accident and how it occurred plaintiff testified that she was going east on Independence avenue, a board sidwalk, and, as she stepped on the sidewalk, it “kinder tilted just a little,” but that she did not pay much attention to it and went over it, and as she was going over, she kept going and down she went, and after that she didn’t know anything until the colored fellow spoke. She didn’t know how long she laid there. It might have been five seconds or five minutes, she didn’t know. That she fell in a hole in the sidewalk, which she had never seen; that she had never walked over this sidewalk before. That it was very dark all along there. That she did not see the hole at all before she stepped into it, and that if she had seen it she would not have stepped into it; that she never thought of such a thing as looking. Plaintiff stepped upon the sidewalk fifteen or twenty feet west of the hole. It is insisted by defendant that these facts show that plaintiff was guilty' of negligence directly contrib
It is true there was evidence tending to show that the night was not dark, and that plaintiff could have seen the hole in the sidewalk in time to have avoided the injury had she been looking, but the question before us now is as to whether or not there was any substantial evidence to sustain the verdict, and in determining that question the court will not consider defendant’s controverting evidence, but will assume that plaintiff’s evidence is true, and will give to it every favorable inference which may be reasonably and fairly drawn from it. [Cohn v. Kansas City, 108 Mo. 387.]
A city is required to keep its sidewalks free from obstructions and reasonably safe for pedestrians, either by day or by night, and in the absence of any knowledge upon the part of plaintiff of the hole in question and of its dangerous condition, before the accident, she had the right to presume that it was reasonably safe for travel in the usual mode, and the fact that the walk “tilted” with her when she stepped upon it, was no warning of its dangerous condition at the place where she was hurt.
Moreover, she testified that the night was very dark and that there were no lights there in order to enable her to discover the condition of the walk. She was not, therefore, under the circumstances guilty of contributory negligence.
It is said for defendant that plaintiff herself testified that she felt the walk “tilt” but kept going, and did not look where she was stepping, when her own witnesses testified that it was light enough to see the hole in the walk a distance of half a block, and in view' of su.eh evidence it was reversible error to instruct the jury that plaintiff had the right to presume that the walk was reasonably safe. -
What she did state with respect to the movement of the sidewalk was that when she stepped upon the
Plaintiff’s witnesses who testified that it was light enough to see the hole in the walk a distance of half a block, were located at different points from where she was at the time she stepped in the hole, and it can not, therefore, be inferred from their testimony that she either saw it, or by the exercise of ordinary care might have seen it before stepping into it. Moreover, on the day of the accident, March 25, 1900, the sun set at sixteen minutes after six o’clock, and as the accident occurred between seven-thirty and eight p. m., it was from one hour and fourteen minutes to one hour and forty.-four minutes after the sun set when plaintiff was injured, and must have been dark, or at least practically so. Under such circumstances knowledge by plaintiff of the existence of the hole before she stepped into it can not be imputed to her.
There was, therefore, no evidence that plaintiff had any knowledge of the existence of the hole before she stepped into it, and plaintiff’s first instruction was not erroneous in assuming that she did not have such notice. [Perrette v. Kansas City, 162 Mo. 238.]
Nor do we think there is any conflict between the instruction under consideration and defendant’s-fifth instruction relating to contributory negligence.
It is insisted that the court erred in admitting in evidence the expert opinion of plaintiff’s doctors as to the cause of her physical condition, based on the previous history of her case as they learned it from her; that the correct method is to prove cause by hypothetical questions based upon facts in evidence.
That-the opinion of an expert witness is permissible when based upon his personal knowledge of the matter under investigation, or upon competent evidence in the case or upon both is well settled, but the question before us is, whether a physician who testifies as an
Plaintiff contends that the court did not err in allowing the physicians who attended plaintiff during her troubles from these injuries to testify as to what ailments plaintiff was suffering with, their extent and .-probable duration, because said physicians in forming their opinions upon said points took into consideration the “history of the case” as detailed to them by the plaintiff herself.
Plaintiff cites a number of authorities which seem to sustain her contention. Thus it is said in Watson on Damages- for Personal Injuries, sec. 605, p. 723, that : “A medical expert may form and express an opinion of the nature of the malady or injuries of an ill or injured person, based in part upon the statements and complaints made by the patient in relation to his condition, sufferings or symptoms at the time, in the course of a professional examination into his case. ’ ’
When a physician is called as an expert “he may base his opinions upon a statement given by the patient in relation to his condition and sensations, past and present. Thus only can the expert ascertain the condition of Ihe party; and he may of course be guided to some extent by the data thus furnished.” [2 Jones on the Law of Evidence, sec. 352.]
In Railroad v. Sutton, 42 Ill. 438, it is said:
In City of Salem v. Webster, 95 Ill. App. 120, it is said: ‘ ‘ Certain physicians and surgeons, who had treated appellee for his injuries, in course of testifying as to his condition and the course of treatment prescribed, were allowed to state, over appellant’s objections,' what appellee at such times told them in describing his bodily condition. Some of these instances were after the commencement of this suit, but they were all made to appellee’s physicians during actual treatment and in direct connection therewith, and there is nothing in this record to justify any reasonable suspicion of improper motive or bad faith on the part of appellee on any of these occasions. When such statements are made to a physician during treatment and in connection therewith, the mere fact of pending litigation does not render them incompetent.”
While this case was afterwards affirmed by the Supreme Court in 192 Ill. 369 (l. c. 371), it was expressly said:
“Objections were also made and overruled to the testimony of physicians as to what plaintiff said to them while being examined and treated, in describing his feelings and detailing the nature and location of his pains and sufferings. As to such matters the opinions of the physicians must necessarily be formed and guided by statements of the patient, and the evidence
In Louisville, etc. v. Snyder, 117 Ind. 435, the court says: “Dr. Bowles, an expert witness called by the appellant, gave an opinion as to the nature and extent of the injury sustained by the appellee, and on cross-examination it was developed that his testimony was in part based on statements made to him by the appellee. Waiving all questions of practice, and deciding the appellant’s motion to strike out, as if it were properly restricted to the alleged incompetent part of the testimony, we have no hesitation in deciding that the trial court did right in overruling the motion. As we have often decided, the physical organs of a human being can not be inspected by eyes of a surgeon, and the statements of the sufferer must, of necessity, be taken by the surgeon. ’ ’
In Roosa v. Boston Loan Co., 132 Mass. 439, the court says: ‘ ‘ The statements of a patient to a physician of his pain and suffering, and in regard to his bodily condition, are competent to enable him to form an opin
In Barber v. Merriam, 11 Allen 322, the court says:
“The opinion of a surgeon or physician is necessarily formed in part on the statements of his patient, describing his conditions and symptoms and the causes which have led to the injury or disease under which he appears to be suffering. This opinion is clearly competent as coming from an expert. But it is obvious that it would be unreasonable, if not absurd, to receive the opinion in evidence, and at the same time to shut out the reasons and grounds on which it is founded. Such a course of practice would take from the consideration of a court and jury the means of determining whether the judgment of the expert was sound and his opinions well founded and satisfactory. . . . The party producing the witness and who relies upon his opinion should be allowed the privilege of showing that his testimony as an expert is the result of due inquiry and investigation into the condition and symptoms of the patient, both past and present. ., . . The existence of many bodily sensations and ailments which go to make up the symptoms of disease or injury can be known only to the person who experiences them. It is the statement and description of these which enter into and form part of the facts on which the opinion of an expert as to the conditions of health or disease is founded.”
Later on in the opinion it is said:
“It is suggested, in behalf of the defendant, that the statements in the present case were made by plaintiff after the commencement of this action. But we do not think for that reason only they ought to have been rejected. It was a circumstance which may have detracted from the weight of the evidence of the opinion of the physician, so far as it was founded on these statements. But as the statements were made to a medi
A careful reading of these decisions will show that they are all, with perhaps the- exception of the Roosa case, predicated upon statements made by the patient during treatment or by some person undergoing examination with respect to his or her condition, pain and suffering and its location, and the expert witness might in part take them into consideration in expressing his •opinion as such expert as the natural expressions of suffering, if not as a part of the res gestae.
But in the case of People v. Murphy, 101 N. Y. 126, a physician called as an expert witness was allowed to give his opinion as to the physical condition of a woman then upon trial for crime upon what he observed and upon her narrative of the facts, and it was held error. The court said:
“But, notwithstanding, the attending physician was allowed to express his opinion as a medical expert that an abortion had been produced, founding that opinion not only npon what he observed of the physical condition Of the woman, but upon all her statements, and the history of the case as derived from her. The opinion of the general term concedes the error of such evidence, but insists that the opinion was founded upon her statements merely of ‘the locality of the pain, the condition of the injured parts, and so on.’ We understand what occurred differently. ' When the witness was first asked his opinion whether the birth occurred from natural or artificial causes, he inquired whether in giving his answer he would be allowed to consider the clinical history of the case as he got it from the girl’s statement, to which the prosecutor replied: ‘ Certainly; I ask the question upon the whole history of the case as yon learned it from her, as well as from the examination.’ To this the prisoner objected. The court did not at once pass upon the objection, but suggested that the physician answer first from his observation alone.
Again in the case of Heald v. Thing, 45 Me. 395, the court held as follows :
“But in this case, while it is admitted that the declarations above referred to were properly excluded, it is strenuously contended that an opinion based wholly upon them (for the witness was permitted to give his opinion based upon his own examination and observation), should go to the jury as competent evidence, upon which they would be authorized to act, on the ground that the witness, beirig a person of skill, is am thorized to determine the proper sources, in connection with his personal examination, from which to derive those opinions. The proposition contains two fundamental errors: First, it makes the witness decide the question of the competency of evidence, thus putting him in the place of the court. Next, while it excludes the declarations as incompetent testimony to go to the jury, it receives, as competent evidence, an opinion based upon that incompetent testimony, thus attempting to elevate the stream above the fountain, to make a corrupt tree bring forth good fruit. The declarations of the nurse and wife may have been only mere inferences on their part, and on those inferences the doctor is desired to draw an inference, and this last inference, being called the opinion of .an expert, is made to assume the character of competent and substantial evidence. I have not been able to find any authority to sustain such propositions.”
“It is also contended by counsel for appellant that the court erred in refusing to permit Dr. Hunter to testify to the following question: ‘Please state what, in your judgment as a physician, is the present malady of the plaintiff, according to the symptoms as given by Dr. Tillottson.’ The witness had stated that he had heard Dr. Tillottson’s testimony, and also that the doctor had made a statement of the case to' him on the day before. The question put to the witness did not call for his opinion on the testimony of Dr. Tillottson, as given on the trial, but according to the symptoms given by the doctor, which included statements as well, made on the previous day. We are not aware that it has ever been held that a medical expert has the right to testify to an opinion formed upon information derived from private conversations with witnesses in the case, and we are not inclined to adopt a rale of that character. ’ ’
It is to be noted that the physicians can not relate in evidence the previous history. The court, in Davidson v. Cornell, 132 N. Y. 238, says:
“In the present case the declarations in question of the plaintiff were not instinctive nor were they made to the physician with a view to medical treatment. They consisted not of exclamation of present pain or suffering, but were the plaintiff’s statements so far as called for by the doctor of the effect upon him of the injury and the consequences which had followed in such respects from the time it occurred, a period of - nearly fifteen months. This was hearsay, and is very different from that of a medical witness as to the expressions by a patient or person suffering from injury or disease, indicating pain or distress or expressive of the present
A leading case on this point is Insurance Co.- v. Mosley, 8 Wall. 397. The court holds in that case that the physicians can only give in evidence the declarations of patient as to “a present existing pain or malady.”
The statements of plaintiff with respect to her past physical condition were mere hearsay, and should not have been considered by the expert in expressing his opinion as a witness as to her physical condition at the time of the trial. The decided weight of authority and the better reason we think supports this contention. It follows that the court committed error in allowing the expert witnesses to give their opinions based upon the history of plaintiff as they learned it from her in diagnosing her case, or while treating her.
' It is also insisted by defendant that the court erred in allowing Dr. Jones to answer a hypothetical question. The question was, “These conditions that you found in this lady’s spine and womb and nervous system, could this condition, or any of .them, or all of them, have been caused by a shock, a fall?” and the objection
In Commonwealth v. Piper, 120 Mass. 185, it was said:
“The testimony of Drs. Cotting, Cheever and Foye was properly admitted. All of these witnesses were present at the autopsy of the murdered child and examined her head, and no question wás made as to their competency as medical experts. The only part of the testimony objected to at the trial was that to the effect that in their opinion the injuries to the head could not have been produced at the same time and by one blow. This subject was within the range of the experience of medical experts accustomed to observe the effect of blows upon the human head, and was one upon which their judgment would aid the jury. No exception lies to the admission of the testimony.”
This contention is we think without merit.
Defendant also contends that the court erred in sustaining plaintiff’s objection to the evidence of Dr. Van Eman, the physician who attended plaintiff in his professional capacity for three days after her injury. The evidence of this witness was objected to upon the ground of privileged communications, under section 4659, Revised Statutes 1899.
The record discloses that plaintiff testified that when Dr. Van Eman called to see her on the night she was hurt he examined her, but that she did not know that he examined her thoroughly. That he asked her questions, and asked her about it, and she told him and he examined her womb and her back. But it shows
This evidence went in over plaintiff’s objections; he was defendant’s witness, and it was a conversation that did not come within the purview of the statute; it was not “information necessary for the physician to enable him to prescribe for such patient as a physician, or do any'act for him as a surgeon.” It was purely a conversation in regard to plaintiff’s doctor bill or in regard to the contemplated lawsuit.
It is held in the ease of James v. Kansas City, - 85 Mo. App. 20, that while a physician is incompetent to testify as to the knowledge acquired in his professional capacity and which was necessary to a proper diagnosis and treatment of the case, yet such incompetency does not touch facts which are in no way necessary for that purpose.
The New Vork statute with respect to privileged communications is practically the same as the Missouri
“One Powell, a physician and surgeon, was called as a witness by defendant, and after testifying on his direct examination that he was called to treat the plaintiff on the evening of the fifteenth of November, 1896, at Ravena, being the evening of the day following the accident, he stated that he made an examination" of the plaintiff, and was then asked by the defendant: ‘Q. Kindly describe the examination yon made in your own way?’ This question was objected to by the plaintiff as incompetent; that the witness can not state what took place at the time he was called as a physician; that the facts that he obtained in prescribing for the plaintiff are inadmissible under section 834 of the Code of Civil Procedure. The court said: ‘I think you are limited (on your claim that there was a waiver) to a denial of her testimony here in the court by the testimony of the physician. ’ To this the defendant excepted. This was followed by many questions, of which the following are samples: ‘Q. Did you make a critical examination after having her undressed and parts exposed to view and touch; did you make a complete, critical and thorough examination of the parts that she complained of having pain in ? ’ ‘Q. Did you make an examination of the heart and lungs and a complete ánd thorough investigation to discover the existence of organic disease?’ To these and similar questions the same objection was made as to the previous question, and the same ruling was made by the court. The only evidence given ' by-plaintiff on her examination with reference to what was done and said by Dr. Powell when he was called to treat her other than the statement that he had given her internal remedies which she used, was brought out by the defendant on the cross-examination of the plaintiff, ánd is as follows: ‘Q. What did the doctor do for you? A. .He examined my back and examined me. He ordered alcohol. Q. What did he give you? A.
That the plaintiff could not sever her privilege and waive it in part and retain it in part, we think clear. And if she waived it at all then it ceased to exist. That she did so waive it when she testified that Dr. Yan Eman examined her, though not very thoroughly and asked her about it, and she told him, and he examined her womb and back, seems to us to be too plain for discussion, but such waiver should be restricted to such information as her doctor acquired from her while attending her in a professional character, and which information was necessary to enable him to prescribe for her as a physician, or to do some act for her as a.surgeon, and it is manifest that the conversation between plaintiff and Dr. Yan Eman in regard to the contemplated lawsuit, or plaintiff’s doctor bill, did not come within the provision of the statute.
But we are not to be understood by these observations as meaning or intimating that Dr. Yan Eman was not competent to testify as a witness to what plaintiff said to him, if anything, in regard to bringing suit against defendant for damages, and if she would go into it they would be able to fix up his bill against her. Such statements were not within the meaning of the statute under consideration.
Plaintiff testified upon her examination in chief that her general health was good, and upon cross-examination she was asked if Dr. Mathis had treated her, and what for. She replied that he had treated her for headaches, nothing else. Defendant thereafter introduced Dr. Mathis to show what he had treated her
The statutes of Iowa and New York with respect to privileged communications are in all essentials like the Missouri statute, and in the former state in the case of Burgess v. Sims Drug Co., 114 Iowa 275, the facts were similar to the facts to the case at bar.
In that case defendant asked plaintiff on cross-examination if a certain physician, viz., Dr. Amos, had treated him, and what the doctor had treated him for. Plaintiff answered the questions, without objection, and then defendant offered Dr. Amos as a witness, claiming that plaintiff had waived his right under the statute by answering the questions propounded him by the defendant. The court held that plaintiff had not thereby waived his privilege under the statute, and that Dr. Amos was not competent to testify in regard to plaintiff's ailments, or his treatment of him.
The court says: “If counsel saw fit, on cross-examination, to inquire into this matter, he must be bound by the answer, and can not afterwards claim that the witness, by answering without objection, voluntarily waived the privilege.”
The same rule is announced by the Supreme Court of New York in Fox v. Union Turnpike Co., supra.
Our conclusion is that the judgment should he reversed and the cause remanded to be tried in accordance with the views herein expressed. It is so ordered.