73 Wis. 158 | Wis. | 1888
The facts of this case are mainly the same as in the previous case of Stutz v. C. & N. W. R. Co., ante,
1. It is assigned as error that Dr. Halleck, as a medical witness for the plaintiff, was asked: “ Do not all the authors, so far as you have read, and those of standing in the profession, lay it down among other causes of epilepsy, lay down fright and mental excitement as predisposing causes of epilepsy?” This was objected to on the ground of its
These questions and answers relating to medical books and authors were clearly, improper, and the ruling erroneous. Stilling v. Thorp, 54 Wis. 528; Boyle v. State, 57 Wis. 472; Soquet v. State, 72 Wis. 659. There was very much of this kind of testimony of these and other medical witnesses admitted after general objection. But we are disposed to hold that this error, so often repeated, is not sufficient ground for reversal of the judgment, for two reasons: (1) The objection to this evidence was waived by the defendant, by having first introduced it, and by having had the benefit of the same kind of evidence, obtained on cross-examination of the plaintiff’s witnesses. (2) The attention
2. The plaintiff, as a witness, was asked by her counsel, “Have you a family?” and she answered: “One living, and one dead.” “IIow old is the child that you now have living?” and'she answered: “He is seven years, will be eight in July.” Exception was taken by the defendant’s counsel to overruling objection to these questions. This was error. Upon the question of damages for the negligent killing or injuring a child, evidence as to the family and condition of its parents is admissible. Johnson v. C. & N. W. R. Co. 64 Wis. 425. From the admission of such evidence in this case, it might very naturally occur to the jury that the plaintiff would be entitled to greater damages on account of the support and dependence of her child. But in such a case the admission of such evidence was highly improper, and we cannot say that it did not affect the amount of the verdict. Pennsylvania Co. v. Roy, 102 U. S. 451; Chicago v. O’ Brennan, 65 Ill. 160; Pittsburg, Ft. W. & C. R. Co. v. Powers, 74 Ill. 343.
3. Dr. Halleck testified that he heard the testimony of the plaintiff, and the other evidence in the case, and he was then asked by the plaintiff’s counsel: “ From said evidence, .and that of the plaintiff, and your examination of her as her physician, were the subsequent attacks of the same nature as the attack described by the plaintiff? ” and he an
The above questions and testimony were clearly improper. The other evidence besides that of the plaintiff, upon which ah opinion was asked, was in relation to her symptoms and appearance at different times, testified to by several different witnesses, in which they did not agree in all particulars. This was sufficient as to the opinion asked of Dr. Halleck. And as to the questions put to Dr. Shimonick, and his evidence which the court was asked to strike out, they were not only based up’on the testimony of other witnesses which was to some extent contradictory, but upon what the plaintiff and her mother told him one year and a
4. The defendant’s counsel asked the court to submit to the jury, as a special finding, the following question: “Did the plaintiff fall into the cattle-guard in and during an attempt to extricate Mrs. Stutz therefrom?” The court refused, and exception was taken. We think the court erred by such refusal. There was some evidence tending to show that the plaintiff fell into the cattle-guard by trying to help Mrs. Stutz out of it. Mrs. Stutz testified that, as she took a scream, the plaintiff tried to help, and then she tumbled in. W. H. Askew testified that the plaintiff told him that “ Mrs. Stutz slipped into the culvert, and that she assisted her to get out; that she slipped down in doing so, and bruised her side slightly.” This evidence makes a disputed or litigated question of the manner in wdiich the plaintiff fell into the culvert, and whether the plaintiff fell in and received her injury as the direct and proximate result of the negligence complained of, or of some independént and intervening cause for which the company was not responsible. Lewis v. F. & P. M. R. Co. 54 Mich. 55. It is true the plaintiff denied that she ever said so to the witness Askew; and Mrs. Stutz testified afterwards that she did not know how the plaintiff fell into the cattle-guard, but still there was evidence enough to make a disputed fact, and a very important one.
For these errors the judgment will have to be reversed, and a new trial had.
By the Court.— The judgment of the count}'' court is reversed, and the cause remanded for a new trial.