168 Ky. 611 | Ky. Ct. App. | 1916
Opinion of the Couet by
— Reversing.
• The appellee, with her husband, was traveling in an open top buggy on the pike leading from Frankfort, Ky., to Midway, in Woodford county, Kentucky, and while yet in the corporate limits of the city of Frankfort, and between the arsenal in the city and the city cemetery, the horse attached to the buggy in which they were traveling became frightened at the approach of a oar operated by appellant on its electric line of railroad running between Frankfort and Lexington, Ky. At the point where the accident occurred and some distance beyond it in the direction from which the car was approaching, the track of the railroad runs upon a part of the highway and over its northern edge, leaving, however, ample and sufficient space for the public to travel over and upon the highway. According to the testimony of appellee and her witnesses, the approach of the car was discovered by her some one hundred yards ahead of where she met it, and at this time the horse which, she was driving began to scare and frighten at the approach of the car, which she and her witnesses claim was running at that particular place and time at a very rapid rate of speed. Her testimony shows that the horse became considerably unruly and was rearing up and otherwise manifesting evident fright, sufficient to warn the motorman in charge of the approaching car of the prospective danger to the occupants of the buggy. Just be
The evidence of appellant, as developed by its witnesses, considerably preponderated to the effect that while those in charge of the car saw the buggy approaching for perhaps the distance claimed by appellee and her witnesses, yet they say that the horse did not begin to take fright or to show any evidence of it until the car was within some 25 or 30 feet of the horse and buggy and that it was running at that time at .a rate of speed not exceeding from four to six miles per hour, and that the car was stopped as it got somewhere about even with the horse and buggy; whereupon the conductor jumped off of the rear end of the car and took hold of the bridle bits of the horse, when he soon became calm and the car proceeded down the hill to the station of appellant in the city of Frankfort.'
The testimony seems to be unanimous to the effect that about the time that the conductor took hold of the horse, the husband of appellee got out of the buggy, followed by the appellee, and the appellee led the horse back into Frankfort, a distance of some 200 or 300 yards, and the husband pulled the buggy down the hill and carried it to some repair shop, where- in about two hours it was repaired and the journey to Midway was then proceeded with. The appellee remained at the house of her sister some four or five days, when she returned to her home in the country near Frankfort, and about four weeks thereafter she sent for Dr. Ginn, a physician in the neighborhood, and he states that he found her suffering from labor pains. About four weeks thereafter, or eight weeks after the accident, the appellee
This snit was filed in the Franklin circuit court on December 5, 1913, seeking to recover ■ damages of the appellant in the sum of $10,000.00, it being claimed that the accident was the result of the negligence and carelessness of the motorman in charge of the car by failing to comply with the duties which the law imposes upon railroads, including electric railroads, as to travelers upon the highway immediately adjacent to their tracks, and it is claimed that the miscarriage was produced by and resulted from the injuries which plaintiff claims to have received. The answer is a denial of the allegations of the petition and a plea of contributory negligence, which plea was controverted, and upon the trial of the case there was a verdict and judgment in favor of ap-pellee in the sum of $1,000.00, and to correct the errors claimed to have been committed by the lower court, this appeal is prosecuted.
It will be observed that this accident occurred within the corporate limits of the city of Frankfort and on one of its principal streets. . In such cases it has been determined many times by this court that it is the duty of those in charge of the car to exercise ordinary care to discover the proximity of travelers upon the street to its track and to exercise ordinary care to prevent injury to such'travelers whether by collision or by frightening animals traveling upon the street, causing them to produce injuries to their drivers or persons riding in the vehicle being drawn by them. Moreover, it is the rule that carriers must exercise ordinary care to prevent injuries by frightening animals upon highways paralleling the. railroad track after the fright of such animals is well discovered in rural districts. L. & N. R. R. Co. v. McCandless, 123 Ky., 121; L. & N. R. R. Co. v. Street’s Admr., 139 Ky., 186; Ky. Traction & Terminal Co. v. Downing, 152 Ky., 25.
The Downing case, supra, was one against this same appellant while operating its car by the side of the turnpike, but not in the corporate limits of any city.'
According to the testimony of appellee and her witnesses, her presence near to. the track, as well as the fright of her horse, not only, could have been seen by the exercise of ordinary care by the motorman, but that
In an effort to show that the miscarriage resulted as a consequence of the injuries, or of the fright of appellee, she testified upon the trial as follows:
‘ ‘ Q. 'What did you do after you got the wheel on the buggy? A. Went on up home and stayed a few days. Q. To your sister’s? A. Yes, sir. Q. Three or four days? A. Yes, sir; and then came back home again, and taken my bed. Q. What was your condition-? A. I was in a bad condition. I was just like I am now. Q. In, a family way? A. Yes, sir. Q. At what period — what month, how long? A. Six months. Q. Did you suffer any after you got back home? A. Yes, sir, off and on all the time. Q. Did you have a doctor? A. Yes, sir— Dr. Ginn. Q. Did he prescribe for you? A. Yes, sir. Q. How did you suffer? A. Prom labor pains. Q. What part of your body did they affect? A. My back and sides. Q. Did you suffer in any other way — anything else? Did you have any discharges or anything of that kind? A. Yes, sir; off and on all the time until the baby was bom. Q. Describe to the jury how frequent — was it frequent or not? A. No. Well, a right smart, too. Q. Heavy or light? A. Heavy during times. Q. What doctor did you have? A. Doctor Ginn. Q. Did he live in the neighborhood? A. Yes, sir. Q. When was the child bom? A. The eighth of October. Q. Was it dead or alive? A. Dead — it had done mortified. Q. Describe to the jury whether or not you suffered much or little? A. I suffered a good deal. Q. How about after that? A. I suffered with my back and sides. Q. Have you ever recovered? A. No, sir; my sides still hurts. Q. How soon after the accident was it before you commenced to suffer? A. Right at once. Q. Were you in bed any while you were at your sister’s? A. Right around all the time I was up there. Q. After you got hurt? A, Yes, sir — all the time, off and on.”
Further along in her testimony she testified that she continued to do her household work with the assistance of some of her children, who were old enough to help
With the record in this condition, upon the very vital issue as to whether the miscarriage was produced by the accident, the appellee, through her attorneys, over the objections of counsel for appellant, was permitted to propound to her physician witnesses this question: “Now, doctor, assuming that woman in normal health and five or six months pregnant was riding in a buggy and her horse became frightened at the approach of an-
Expert testimony is regarded by the law as the- weakest character of testimony. It is a species of hearsay testimony forming an exception to the general rule forbidding the introduction of that character of testimony because of the necessities of the case, and the tendencies of the courts are constantly inclining in the direction of narrowing the rule permitting its introduction rather than extending it. The expert witness, as latter day experience has taught, always colors his testimony for the side introducing him, and indeed we learn from the history of the country that in great centers of population there exists experts following the business of bartering their expert or scientific knowledge to the litigant who can pay the highest price, and while there is nothing to show that the testimony of any of the physicians in this case was influenced by any such considerations, yet it is because of the existence of the facts which we have stated that the rule of law permitting its admission has been brought to its present condition.
In substantiation of what we have said on this subject, we read from volume 17 of Cyc., 267, as follows: '
“The general uncertainty and persistent disagreement of authority on many lines of professional and scientific inquiry, the fact that this class of evidence deals so largely with the problematical and the conjectural, and that there are other elements of unreliability arising from human frailty, bias, loyalty to one’s employer, pride of opinion, self-interest, or the heat engendered by controversy, which more or less uncon*618 sciously warp the mind of the witness, even without the more vulgar elements of venality and the absence of any efficient pnnishment for perjury, have caused courts of the highest eminence to feel that experts are frequently rather the hired advocates of the parties than men of science placing their special experience at the service of the cause of justice. Such courts have naturally characterized . this class of evidence unfavorably and have ruled that such evidence should be received with ‘caution/ ‘with narrow scrutiny and with much caution/ and never «receiving it at all except when absolutely necessary. ’ ’
Upon this question, Judge Peckham, speaking for the Court of Appeals of'New York, in the case of Roberts v. N. Y. Elevated Railroad Co., 13 L. R. A., 499, says:
“It is .none the less conjecture and speculation because the expert is willing to swear to his opinion. He comes on the stand to swear in favor of the party calling him, and it may be said he always justifies by his works the faith that has been placed in him.” (See also Smith v. Smith, 5 Ky., 722.)
Other authorities could be cited, but we deem it unnecessary.
With this character of evidence being regarded by the law as we have stated, it is the more important that the circumscribing rules permitting its introduction should be the more strictly enforced. The hypothetical question grouping therein the facts forming the premises upon which the answer of the witnesses must be based must include no facts not shown by some of the testimony to have existed; nor must it omit any relative fact shown by some of the. testimony to have existed. This is the universal rule and is stated by Prof. Green-' leaf in the 16th Ed. of his work on Evidence, vol. 1, sec. 441k: “It would therefore be necessary for him (the expert), in stating his opinion, not only to specify the data for it, but to specify them hypothetically, i. e., as. only assumed by him to exist.” And further on in the same section: “Thus, the necessity, for stating the data hypothetically arises because the witness has no personal knowledge of them and because it cannot before the jury’s retirement be known what data they will find to be facts and therefore what opinions are applicable to the case as found by the jury.” And again in section. 4411: “The.purpose.of the hypothetical presentation re-.
In volume 17 of Cyc., supra, on page 247, the rule is stated, thus:
“Hypothetical conjecture must he based upon facts as to which there is such evidence that a jury might reasonably find that they are established; hut it is not necessary that the facts should be clearly proven, or that the exact language of the witness should he shown, or that immaterial facts should he covered by evidence. ’’
This court in the case of Champ v. Commonwealth, 2nd Met., 27, upon the same subject, says:
“Whatever diversity of opinion there may have been in relation to the admissibility of the opinions of experts upon questions of art or science, it is agreed on all hands that such opinion, to be admissible must always be predicated upon, and relate to the facts established by the proof in the case. Mere professional opinion upon abstract questions of science, having no proper relation to the facts upon which the jury are to' pass, evidently tend to lead their minds away from the true and real points of inquiry, and should therefore always be excluded.”
In the opinion- of Pannell v. Louisville Tobo. Co., 113 Ky., 630, this court says:
“The mere opinions of witnesses without the facts upon which they are based are of little value.”
And in the case- of Baxter’s Admr. v. Knox, 19 Ky. L. R, 1973, this court recognizing the rule being considered, says-:
“It is not always necessary to-prove to a certainty or with any degree of certainty that certain facts exist before the facts may be embraced in hypothetical questions, but is sufficient that all the facts hypothecated be proven by some witness.”
The rule was also before this court in the case of Davis v. Commonwealth, 6 Ky. L. R, 658, and it is stated, in the syllabus (the opinion not being printed in full), as we have herein indicated, as follows: ■
“The rule that requires that hypothetical questions-asked of experts shall be based upon proven facts only does not require that the exact language .of the witness;*620 be used, nor does it require that the questions shall be based upon facts conclusively established by the testimony; hypothetical questions can be based upon any state of facts that any of the testimony sustains, although there may be conflicting testimony.”
From the authorities which we have cited and many others which could be cited, it will be found that the rule requires the examiner to incorporate into the hypothetical question, not necessarily facts which have been conclusively proven, but that he must incorporate therein facts, only which the testimony tends to establish and such as the jury may be authorized under the testimony to find. Nor can his question omit in its incorporation proven facts, or those which the testimony tends to prove which are material and would have a bearing upon the principal facts sought to be established or refuted.
Applying this rule to the instant case, we find there to be incorporated in the hypothetical question the following: “Assuming that a woman in normal health,” and, “within a few days or a week bloody discharges began to pass from her,” and further, “in the absence of any other cause.” The proof wholly failed to justify the incorporation of these statements in the question complained of. Indeed, when it was stated therein as propounded, “in the absence of any other cause,” the witness could not possibly make any other answer except the one desired, which was, that the miscarriage was produced by the accident and resulted from it. There was no proof in the case that the discharges had been any other than the normal ones for a woman in the then condition of appellee, and no proof that the discharges were of such an alarming character as to be “bloody.”
Without further elaborating this question, we conclude that the error in admitting the question to be propounded as framed was highly prejudicial. Its effect was to almost force an answer from the witness establishing the appellee’s cause of action, and without which the miscarriage could not be connected with the accident. Indeed, the answer so obtained from the witness completely refuted the combined experiences of all the physicians who testified in the case, and at once bridged the chasm separating the reasonable from the almost unreasonable. While it is barely possible that this miscarriage was a part of the fruits of the accident, still
Complaint is made of instruction number 1, given by the court, and not without justification. It submitted to the jury the question as to whether the servants of the appellant in charge of the car were negligent in failing to keep a lookout and to stop the car, when this duty should have been imposed by the instruction only on the motorman driving the car. (Louisville R. Co. v. Gaar, 112 S. W. (Ky.), 1130; C. & O. Ry. Co. v. Lange, Admr., 135 Ky., 76.) But this court has said in the case of Ky. Traction & Terminal Co. v. Downing, supra, that under the facts therein, which are similar to the ones in this case, a reversal would not be had for this, error. The instruction, however, erroneously defined the duty of the motorman in charge of the car after discovering the frightened condition of the horse. Upon this point it says: “ Or by the exercise of ordinary care could have discovered that plaintiff’s horse was fright-, ened at the approach of the car and she was in apparent danger and he failed to have his car under reasonable-control, or if said servant had then and could by reasonable effort have stopped the car, etc.” The error in the instruction upon this point consists in the use of' the words “reasonable effort.” It was the duty of the-motorman after discovering the -apparent danger of ap-pellee, or could have discovered it by the use of ordinary care, to have exercised ordinary care, consistent with the safety of the car and his duties to the passengers, to stop the car or prevent further frightening of the horse. Upon another trial the court will give in lieu of instruction number 1, as follows: “The court instructs the jury, that it was the duty of the motorman, in charge of the car of the defendant, upon the occasion in question, to keep a lookout for travelers on the street, in close proximity to its oars, and to have said car under such control, that it could be stopped within a reasonable time after the discovery, by ordinary care, of the peri], if any, to travelers upon the streets, by reason of horses becoming frightened at the approach of the car; and the court instructs the jury, that if they believe from the evidence, that while plaintiff, on the occasion in question, was passing along East Main Street in Frank
For the errors indicated, the judgment is reversed .with directions to proceed consistent with this opinion.