43 Minn. 279 | Minn. | 1890
In the various hypothetical questions put by the plaintiff to his expert medical witnesses, to elicit their opinions, we do not find that any fact was assumed that there was not evidence in the case fairly tending to prove. The rule is that for the purpose of a question to an expert witness, to call out his opinion, the party may assume as facts what the evidence tends to prove; and we do not see that the plaintiff was permitted in any instance to depart from this rule. The question in such a ease usually states the facts assumed to be proved. Strictly, perhaps, it ought to. But for convenience the court may, and often does, permit the hypothesis to be put by referring the witness to the testimony if he has heard it, instead of stating the facts. But in such case the question must require the witness to assume the testimony to be true, and not leave it for him to determine whether any of it be true or not; for that would commit to him the function of the jury. In this particular the question to the defendant’s witness Dr. Warner was objectionable. It neither stated the facts as the basis for his opinion, nor did it require him to assume the testimony which it referred to, and on which his opinion was asked, to be true. It left him to determine what of it he should consider true, and what false. It was therefore properly excluded.
When a physician is called on to determine upon the condition or ailment of a patient, he must oftentimes do so, of necessity, from what the patient tells him of his present physical sufferings or symptoms. In many eases it would be impossible to prove what the ailment is, if such statements of the patient be excluded, or if the physi
If, as the jury has found, and as the evidence justified it in finding, the negligence of the defendant caused the injury to plaintiff, the fact that he was at that time in the compartment of the car devoted to carrying baggage, and that it was against the rule of the company for passengers to be there, would not necessarily prevent a recovery. His presence there would not, of itself, be contributory negligence that would bar his right to recover. Negligence on the part of a person injured will not have that effect unless it contributed to his injury. It is difficult to see from the evidence how the fact that plaintiff when injured was standing in the compartment of the car used for baggage, instead of in the compartment used for carrying passengers, tended to cause or aggravate the injury. The shock to the car which caused the injury must have been as great in one part of the car as in another. We cannot say that it is negligence in one taking passage on a railroad car to stand for two or three minutes (the car standing still at the time) instead of at once taking a seat. In this case, certainly, these were questions for the jury. Nor can it be said, under the evidence in the case, that the plaintiff was wrongfully in the baggage compartment of the car, so that the defendant did not owe him the duty of care which a common carrier of passengers owes to his passengers. Even though there was a rule of the defendant posted up in the baggage compartment forbidding passengers to be there, if it was not enforced,, if the defendant, through its servants in charge, habitually disregarded the rule, and permitted passengers to be and ride in that compartment, so that a passenger might assume the rule to have become obsolete, — it certainly could not treat him as a wrong-doer for passing through it to reach that part of the car appropriated to passengers. Jacobus v. St. Paul & Chicago Ry. Co., 20 Minn. 110, (125.) There was evidence from which the jury might find this condition of things. The jury found specially that the rule was not in force at the time, which, read in
Order affirmed.
