105 P. 799 | Utah | 1909
Lead Opinion
Appellant brought this action to recover damages for personal injuries. In his complaint he, in substance, alleged: That at a certain time and place he was a passenger on one of respondent’s street cars; that he informed the conductor that he desired to alight at a certain street crossing; that when the car approached the crossing in question it slackened speed and was running slowly; that appellant then left the inside of the car and went onto the rear platform, and from there stepped onto the car step with a view of alight
The principal assignments of error, and on which appellant strenuously insists, relate to the admission of certain evidence over appellant’s objections. The first error to be noticed arose as follows: After appellant had testified and given his version of the accident and detailed the cause and extent of his injuries, the defendant called Dr. Yan Cott as a witness; who, in answer to respondent’s counsel, testified, in substance: That he was a physician and surgeon; that he had been engaged in practice for over five years; that at .the time of the accident he was engaged in practice in Salt Lake City; that he was not a member of the medical staff of respondent, nor was he employed by it as an assistant; that at times, in cases of accident, whén he was called on, however, he had done some emergency work for respondent when respondent’s regular surgeons could not be obtained; that on the evening of April 18, 1907 (the date of the accident complained of), the witness was requested by Dr. Landenberger, one of respondent’s regular surgeons, to go to the home of appellant. Questions were then asked and answered as follows: “Q. When you did things of that kind, state whether or not it was part of your duty, when making a call in an emergency case for the Utah Light & Railway Company, to obtain a record or statement. A. Yes, sir; it was. ■ Q. Obtain a record or statement of the accident and how it occurred, and turn it into the company? A. Yes, sir. Appellant’s Counsel: I object to that as being incompetent, irrelevant, and immaterial, and move to strike out his answer. The Court: The motion to strike out is denied. Appellant’s Counsel: Exception.”
The foregoing is a substantial transcript from the original bill of exceptions giving the questions and answers thereto', the objections of counsel, and rulings of the court, with the exceptions thereto. For convenience we shall here insert the statement that the doctor testified he obtained from appellant on the evening of the accident, and which was, over appellant’s objection, admitted in evidence. This statement was exhibited to appellant when he was a witness on the stand, and he admitted that the signature was his. The statement, in full, is as follows:
“Salt Lake City, April 13, ’07. Mr. N. P. Madsen. Employee U. L. & Ry. Co. 63 years. Injured 6:30 p. m. on 6:15 car leaving Main. I was coming home on the Calder’s Park car and I was standing on the lower step, expecting to get off on the north side of Ninth South, but the car kept on 'going and I got off. The car was going so fast it threw me to the ground. I did not tell the conductor to stop on the north side, hut thought he always did stop on the north side, and that is the reason I jumped. When I jumped I fell on my left side and could not get home without assistance.”
Appellant’s counsel made the following objection to the admission of this statement: “I object to that on the ground it is incompetent, irrelevant, and immaterial, and under
From the foregoing it will be observed that, while counsel did not refer to the privilege in making his objections to Dr. Van Cott’s testimony, he nevertheless made this objection when the statement obtained by the doctor from appellant was offered in evidence. The questions raised therefore are: (1) Whether, in view of the state of this record, the assignment of ei'ror referred to is properly before us; (2) if it is, whether the record discloses that, when the statement was obtained, the relation of physician and patient existed between Dr. Van Cott and appellant, and (3) if this be so, whether the statement, when fairly construed, comes within the statute as a privileged communication. As to the first two propositions, we entertain serious doubts; but in view that the trial court evidently understood the object and purpose of counsel’s objections, and as counsel for both parties have treated and argued the assignment as being before us, we shall so treat it, and thus address ourselves to the third and last proposition, namely, is there anything contained in the statement of appellant which is protected by the statute? Subdivision 4 of section 3414, Comp. Laws 1907, reads as follows:
“A physician or surgeon cannot, without the consent of his patient, he examined in a civil action as to any information acquired in attending the patient which was necessary to enable him to prescribe or act for the patient.”
While the courts are not in strict harmony in concretely applying the provisions of statutes similar to the foregoing, yet they practically all agree that, in order
The testimony of the physician from which the court may determine whether the information was or was not necessary to enable the physician to act is always important, and, we think, should receive fair and full consideration; but in determining its weight and effect it should be considered in the light of all the facts and the surrounding circumstances. In some cases and under some circumstances the statement or information obtained from the patient may be self-explanatory, and thus a mere inspection of it, if written, or merely having it stated, if oral, may be sufficient to enable the court to determine whether the information is privileged or not. In other cases the doctor’s statement as to whether the information was necessary or not may be conclusive upon the subject. Where therefore evidence of this
It is only fair to state that, in all of the foregoing cases, it was either affirmatively made to appear that the physician
The case of Green v. Terminal Railway Ass’n, etc., supra, is a very recent case, decided in 1908. In that case about all the important cases upon this question are examined and reviewed. In our judgment the true test is applied in that case. The court, in referring to the statute, emphasizes the fact that it is manifest from the statute itself that not all information that a physician obtains from his patient is privileged, but only such as is necessary to en
Let us analyze the statement made by appellant and see whether there is anything in it that, by reason of the privilege contemplated by the statute, the doctor was not authorized to disclose. There certainly is nothing
The information that was obtained from appellant by Drs. Landenberger and Van Cott on the following morning, however, stands on a different footing. Appellant fully submitted himself into the hands of these
It is contended by respondent, however, that, although we should' determine that the court did err in admitting the testimony of the two doctors just referred to, such error would not be fatal to the judgment for the reason that the evidence which was admitted at most related to an issue which was made immaterial, because the appellant had not established negligence on the part of respondent, and that the jury, by returning a general verdict for respondent, necessarily so found. The general rule undoubtedly is to the effect that, when the court admits incom-potent
Applying the foregoing rules to this case, we cannot see wherein appellant can justly complain. His testimony upon which he relies to establish respondent’s failure to1 discharge its duty is in the record. If from this testimony it is not made to appear that the respondent was
The foregoing, in substance, is all the evidence there is upon the question of respondent’s negligence. From what fact or facts disclosed by the foregoing statements could the jury infer that either the conductor or motorman was negligent? Concede that appellant told the conductor that appellant wanted to alight at Ninth South Street. Concede farther that the car slackened its ordinary speed in approaching that street. Still there is absolutely nothing to indicate that the conductor was not going to stop the car when the usual stopping place at that point was reached. What right had a jury to infer that the north side of the street, rather than the south side, was the usual place for stopping ? But appellant says he assumed this. How would this impose the duty to stop upon respondent? The fact remains that, so far as the evidence discloses, neither the conductor nor the motorman knew appellant wanted to alight on the north side of the street. Merely to tell the conductor that appel
We remark further that it is likewise true that the statement of Dr. Van Cott which was admitted in evidence may have reflected upon appellant’s contributory negligence; but, if this be conceded, this in no way affected the issue of respondent’s negligence. The statement in writing which appellant gave to Dr. Van Cott, when compared with appellant’s testimony at the trial, differed only in this: That in the written statement it is stated that appellant jumped and fell, while in his testimony he said he fell from the car. If, in view of all the circumstances detailed, he jumped, he clearly was guilty of contributory negligence; but if he did not jump, but fell from the car, then, nevertheless, there is nothing disclosed from his testimony, nor from the surrounding circumstances, from which the jury or any one else could infer negligence upon the part of respondent’s servants which could reasonably be said to have been the proximate cause of appellant’s fall and consequent injury.
For the reasons above stated, the error which it is contended the court committed in permitting Dr. Van Cott to testify that appellant was conscious and rational when - he gave and signed the statement is also immaterial. As we have already pointed out, there was no essential difference
In conclusion we desire to add that, in order to avoid any misconception of the scope of our holding, we repeat that we refuse to reverse this judgment upon the sole,ground that in our judgment the errors committed by the court in the admission of the testimony of the two doctors, in view of the peculiar circumstances of this case, were entirely immaterial, and hence not prejudicial errors. Further, that the statement which was made by appellant to Dr. Van Cott, and which we have held not to have been prejudicial, is held not to have been so: (1) Because there is nothing in the statement itself from which it is reasonable to assume that it was necessary for the doctor to know, even though he intended to treat appellant; (2) because the doctor testified that it contained nothing to that effect: and (3) because, under all of the facts and circumstances disclosed by tbo record, the trial court was justified in ruling the st-ato ment as not within the statute, and hence not within the privilege. We do not desire to be understood as laying down a hard and fast rule as to when a particular statement is .or is not within the statute; but we hold that that must be determined in each case in accordance with the peculiar facts and cireumstanes and in accordance with the rules referred to in this opinion. ,,
Concurrence Opinion
(concurring).
I concur in tbe foregoing opinion. Appellant introduced an abundance of evidence tending to show that be received a severe, painful, and permanent injury when be alighted or fell from tbe ear. While it may be said that there is an apparent conflict in tbe evidence as to tbe extent of appellant’s injury, yet tbe evidence introduced both by appellant and respondent, without conflict, shows that be was severely injured. Therefore tbe conclusion is irresistible that tbe failure of tbe jury to return a verdict in appellant’s favor was not due to failure of proof to show injury, nor because of any conflict in tbe evidence on this point. Dr. Van Cott in bis testimony says (referring to bis first visit to see appellant after tbe accident occurred) : “I ashed him where he was injured, and took bold of bis knee and started to move it, and there was considerable pain there, and be could not move tbe limb very well without considerable pain. - . . I could not examine him there satisfactorily, as it was so painful.” On cross-examination be testified, in part, as follows: “Q. He was in great pain, was be not, at that time? A. Well be was in some pain. Q. Did be tell you be was in great pain? A. No, be didn’t say ‘great.’ He said it was quite painful. Q. You asked him a great many questions about where be was hurt, I suppose? A. Yes, sir. Q. And knew that be bad been hurt by falling, or something of that kind? A. Yes, sir. Q. You took a statement from him as to tbe manner in which be got hurt, did you ? A. Yes, sir. Q. You took that statement from him, asked him questions pertaining to that matter, just about as soon as you arrived on tbe scene? A. No. Q. When did you take it? A. After I looked him over. Q. You made an examination of him beforehand ? A. Yes, sir. Q. And then yon began to ask him about— A. About what happened.”
Coming now to the written statement signed by appellant which purports to recite the facts leading up to and con-
It will thus be seen that this evidence, when considered in connection with that portion of appellant’s testimony referred to in the opinion written by Mr. Justice Frick, is in harmony with the written statement, with the exception that in his oral evidence -he says that he requested the conductor to stop, and in the written statement he says that he made no such request.
Dissenting Opinion
(dissenting).
I dissent. The case is one to recover damages for alleged personal injuries. The defendant denied the negligence and all other material allegations alleged in the complaint, and affirmatively pleaded contributory negligence. Upon the evidence introduced by both parties the case was submitted to the jury, who rendered a verdict for the defendant. During the trial the testimony of two physicians relating to the plaintiff’s injuries, and a written statement made by him to one of them, were admitted in evidence over the plaintiff’s objections. The plaintiff appealed from the judgment and assigned such rulings as error, and presented them for review. No other assignments of error are made by either party. The bill of exceptions, as settled by the court, purports to be all the evidence bearing upon and illustrating such rulings. In the certificate settling the bill, it is recited that the bill “contains all the evidence offered and admitted in the trial of this case illustrating the objections and exceptions and assigned errors therein contained and in accordance with the stipulation of the defendant.” In the stipulation of the defendant, it is recited that the bill “contains all the evidence produced and had at the trial illustrating the objections and exceptions therein contained.” The only evidence contained in the bill is, first, testimony of the plaintiff, and that of a physician called in his behalf, who testified concerning his injuries. Then follows a recital in the bill: “And other witnesses were sworn, and examined on behalf of the plaintiff herein, and the plaintiff rested. And thereupon various witnesses were sworn and examined on behalf of the defendant herein, whereupon the following proceedings were had.” No part of the testimony of such “other witnesses” examined by the plaintiff, nor of the “various witnesses” by the defendant, is set forth in the bill. Following such recital is the testimony of the two physicians called by the defendant and who also gave testimony concerning plaintiff’s injuries. No objections nor exceptions are contained in the bill except those relating to rulings made in respect of testimony of plaintiff, the physicians, and the written statement. It thus, I think, manifestly appears that
The plaintiff was an employee of the defendant, engaged to do traekwork. He was a passenger on one of the defendant’s street cars operated'in Salt Lake City. While alighting therefrom he was injured, as alleged by him, through the defendant’s negligence. He testified that he boarded a ear running South on South East Street at the intersection of that street and. Third South Street. He desired to leave the car at Ninth South Street, which was near his home. He entered the car and took a seat. When the car was within about a half block of Ninth South, the conductor collected the fare, which was paid by plaintiff. At the time of paying the fare, the plaintiff told the conductor that he wanted to get off at Ninth South. The conductor replied, “All right.” The speed of the car was slackened, and the plaintiff arose and walked to the back platform of the car. He testified that he did not know whether the conductor pulled the bell cord or not, but thought that he did. He stood there, as testified to by him, “two or three seconds, or something like that,” and “just when they was going slow I stepped down on the step. I thought they were going to stop. . . . It was pretty near stopped, maybe not quite stopped. I can’t remember that exactly for sure.” While he was so standing on the step, the car started up quickly, and he, as testified to by him, “fell off.” He was thrown or fell to the ground at the north side of Ninth South, striking on his him
Dr. Calderwood, the physician who was called on behalf of plaintiff, testified: That he was called to see the plaintiff on the 26th day of April (the accident having occurred on the 13th day of April) ; that, on an examination, found' him suffering from an injury to> the hip; that he was unable to
The rulings of the court admitting in evidence the testimony of the two- physicians called by the defendant, and the written statement signed by the plaintiff, are the only questions presented for review. It is quite clear to me that the relation of physician and patient between, Drs. Yan Cott and Landenberger and the plaintiff was sufficiently shown. Upon the evidence adduced, such a relation existed between Dr. Yan Cott and the plaintiff as well on the evening of the accident, when Dr. Yan Cott visited him, as when Dr. Yan Cott and Dr. Landenberger visited him on- the following morning. True, a more extensive examination was made the following morning; but the purpose of the visit was the same, and, as testified to. by Dr. Yan Cott, he made the first visit (when he obtained the written statement) “to see what was the trouble and whether the patient needed any treatment in a medical way,” and that the plaintiff understood “that he came there for the purpose of treating him,” and
It, however, is said tbat the information which Dr. Van Cott obtained from the patient, and which was contained in the written statement, was “not necessary to enable him to prescribe or act for the patient,” and hence was not privileged. The purpose of the statute “is to facilitate and make safe full and confidential disclosure by patient to physician of all facts, circumstances, and symptoms, untrammeled by apprehension of their subsequent enforced disclosure and publication on the witness stand, to the end that the physician may form a correct opinion, and be enabled safely and efficaciously to treat his patientand that the “word ‘necessary’ should not be so restricted as to permit testimony of statements or information in good faith asked for or given to enable intelligent treatment, although it may appear that the physician might have diagnosed the disease and prescribed for it without certain of the information, so that it was not strictly necessary.” (In re Will of Bruendl, 102 Wis. 45, 78 N. W. 169.) The word “necessary” is susceptible of various meanings. (5 Words and Phrases, p. 4705; 29 Cyc. 327.) As used in thei statute, it should not be construed to mean as importing that which is indispensable, or an essential requisite, or inevitable, but that which is conducive to, useful, needful, convenient, or appropriate. Though the statute is in derogation of the common law, yet it should receive a liberal, and not a strict, construction. (Section 2489, Comp. Laws 1907.)
It is principally urged that the information acquired by the physician and contained in the writing was not necessary, because of the question prepounded to Dr. Van Cott by counsel for the defendant, and which is set forth in the opinion of Mr. Justice Prick, and in which the physician was asked if the information obtained “was necessary to>
On the other hand, the physician being informed that the patient met with an accident, it was necessary for the physician to further inquire as to the particulars thereof to enable him to ascertain the kind and degree of violence inflicted, and the character of injury naturally to be expected therefrom. To ascertain that it was necessary for the patient to inform the physician the manner in which the patient jumped off, or was thrown from, the car, and struck the ground, the speed of the car and other facts and circumstances tending to show the character and degree of the violence inflicted. I think all that was useful and appropriate to aid the physician in determining whether the plaintiff probably sustained a fracture, sprain, bruise, or other injury, which caused the symptoms complained of. The statements made by the patient to the physician that the car kept on going, and he got off, that it was going so fast it threw him to the ground, that when he jumped he fell on his left side and could not get home without assistance, were necessary and proper information to enable the physician to make a proper diagnosis of the case, and to determine whether the ailments and symptoms complained of were probably due to violence or other causes, and to ascertain the effects of the injury. Indeed, from what the physician saw and was told him that evening by the patient (and the physician testified that the information contained in the written state-
Now, the bare assertion of the physician, his mere conclusion (it amounted to nothing more), that the information was not necessary, was neither admissible nor conclusive of the question. He could only be permitted to testify to facts and circumstances from which the court could deter-; mine and decide the ultimate fact as to whether the information was or was not necessary. This he did not do. Because he was a doctor did not entitle him to also determine a judicial question. The competency or admissibility of evi-
Furthermore, in determining whether the information acquired was or was not necessary, due consideration must be also given to the question as to whether the patient, under all the circumstances, had reason to believe, and did believe, that it was proper and necessary to give the information to enable the physician to prescribe and act for him, for it is the confidence imposed by the patient, by reason of the relation, which primarily makes the acquired information privileged when obtained by the physician as in the statute prescribed. Of course, it is not everything which the patient may. say or communicate to the physician that is privileged under the statute; but, when a physician seeks
I concur with the majority of the court in the ruling that it was error to permit the two physicians called by the defendant to testify as to the result of the examination made on the morning following the accident, and as to the condition of the plaintiff as disclosed by their examination. This holding, of course, is upon the theory • that the relation of physician and patient then existed. I do not see anything in the case which warrants the conclusion that Dr. Van Cott on the first visit, when he obtained the written statement from the plaintiff, was representing and wholly acting for the defendant in the capacity of a physician or some other agent, but that during the night, and by the next morning, such relation was transformed, and he then became the
But I do not agree with the majority of the court that the admission of the testimony held to be erroneous was not prejudicial. It is said not to be prejudicial because on the partial record of the case as presented there is not sufficient evidence to show the defendant guilty of the alleged negligence, and hence the verdict which the jury rendered in favor of the defendant was right. It is conceded that all the evidence is not before us, and that no assignment of error is made by either party raising the question of insufficiency of evidence to show negligence on the part of the defendant. As I have already shown, the bill of exceptions is made up.to illustrate the rulings made in admitting in evidence the testimony of the two physicians, and the written statement made by the plaintiff and delivered to one of them. The bill purports to contain all the evidence bearing on such questions. It is so stipulated by the parties, and certified to by the trial judge. There is no certificate or stipulation, or other statement, that the bill contains all the evidence in the case, or all or any of the evidence bearing on- the question of the defendant’s negligence, or that of the plaintiff. The bill itself contains no evidence on such issues, except the testimony of the plaintiff wherein he described his relation to the defendant, when and where he boarded the car, the things done and said at and about the time of the accident, the manner in which it happened, the nature and extent of his injuries, and the visits of the physicians. While there may be some things in respect of the plaintiff’s testimony contained in the bill which were unnecessary to explain or illustrate the rulings complained of. still it is apparent that it was somewhat difficult to set forth, in the bill the testimony of the plaintiff showing the nature and 'extent of the injuries, the manner in which they were produced, and the amount of violence inflicted, without also setting forth his testimony in the bill concerning the happening of the accident and the things then said and
Now, it is manifest that the verdict of the jury, as rendered by them, was based, not upon the portion of the evidence before us, but upon the whole evidence adduced at the trial of the case; and the question of insufficiency of evidence to show negligence on the part of, the defendant is to be determined' from the whole, not a part, of the evidence adduced on such issue. The conclusion, however, reached by the majority of the court, that there was no sufficient evidence to show such negligence, admittedly is based upon a review and consideration of onlv a nart of, and not all, the evidence adduced on such issue. Not having all such evidence before us, I do not see how a proper conclusion can be reached that the plaintiff was not entitled to go. to the jury on such issue. Furthermore, we have heretofore several times declared that the object of an assignment of errors is to apprise the appellate court and opposing counsel of the specific question to be presented for consideration and review, the points intended to be relied upon and to limit discussion and consideration to those points; and we have frequently held that a question of law not raised by an as
I am not saying that an assignment of error is necessary to determine whether an error committed by the trial court was or was not prejudicial. What I do say is that a review of a question of law, like that of insufficiency of evidence to sustain an issue essential to a litigant’s cause, cannot properly be had without a direct or cross-assignment of error, and proper specifications raising such question, and a presentation of all the evidence adduced on such issue by a
I; of course, accede to the rule that a judgment will not be reversed except for prejudicial error; but whether an erroneous ruling was injurious to the party against whom it was made depends upon the effect or influence it could have had upon the verdict or the result of the trial. From an early time the rule has been, and is now, stated to be that, where error is shown, injury is presumed, unless the contrary appears affirmatively, and that, where error is shown, it will be presumed to have had an effect upon the result of the trial, unless the record affirmatively, not negatively, shows the contrary. (Hayne, New Tr. & App., sec. 287.) In an early case from California (Jackson v. Feather River W. Co., 14 Cal. 19), Mr. Justice Baldwin said: “The rule is that every error is prima facie an injury to the party against whom it is made, and it rests with the other party clearly to show, not that probably no hurt was done, but that none could have been or was done by the error.” Now, the majority of the court say that no hurt could have been done, or was done, by the error committed because, on the record as presented, there is no evidence to show negligence on the part of the defendant. The pertinent question, however, is: Does the record affirmatively show that upon all the evidence adduced at the trial on such issue the plaintiff was not entitled to go to the jury ? I say the record does not so affirmatively show for the reason that it does not contain, and does not purport to contain, all the evidence adduced or the proceedings had on such issue. Without such an affirmative showing by the record, we are not apprised', nor can we judicially know, what evidence was adduced on such issue; and the question of whether the plaintiff was entitled to go to the jury on such issue depends upon, and can only be determined from a consideration of, all the evidence adduced thereon at the trial. And since the record does not show, and does not purport to show, all the evidence so adduced, it does not affirmatively show that the plaintiff was not entitled to go to the jury on such issue. To say, as is in effect said, that the plaintiff was required to show
Suppose, in a case declaring on a written instrument not itself importing a consideration, a valuable consideration, delivery, execution, and breach of the terms of the contract are all sufficiently and properly alleged. By the answer and proper pleadings all the material allegations are put in issue. The alleged signature of the defendant to the instrument, the party sought to be charged, is made a material issue. Upon the evidence adduced by both parties, the case is submitted to the jury, who rendered a verdict for the defendant. During the trial the plaintiff offered competent evidence tending to prove the defendant’s signature to the writing. The court erroneously excluded it. The eourt also erroneously admitted evidence offered by the defendant tending to show that the signature was not his signature. A bill of exceptions is made up and settled illustrating such rulings, showing the objections made and the exceptions taken, and containing all the evidence bearing thereon, and all the proceedings had in respect thereof. The-bill so settled and presented does not contain, and does not purport to contain, the evidence adduced on the questions- or issues of consideration, delivery or breach of the contract. On a review of the rulings presented, and finding error was committed against the plaintiff, the appellate court could, in such case, as well as here, assert that no prejudice resulted because, on the record as presented, it is not shown that the plaintiff was entitled to go to the jury on the question of' consideration, or breach of the contract, or on some other issue concerning which the evidence adduced or proceedings-had were not presented by, nor contained in the record. The establishing- of such a rule requires 'a party proposing a bill not only to do all that the statute requires of him, to state'
In the case in hand, the record sufficiently discloses that it was submitted to the jury on the issues raised by the pleadings and on the evidence adduced by both parties. The record does not disclose that such action of ruling of the court was in any particular questioned, or that the action of the court was in any manner invoked not to submit the case to the jury, or that any controversy arose over such a proceeding or question. In the absence of some showing to the contrary, we ought to indulge the pi’esumption that the submission of the cause to the jury by the court was done properly on the issue of negligence as well as on every other material issue. What is the showing that the court did not properly submit the case to the jury on the issue of such negligence? A partial history of the case which admittedly does not contain, and does not purport to contain, all the evidence adduced on such issue.
When an appellant shows that error was committed in receiving incompetent testimony which directly bore on a material issue in the case, the presumption will be indulged that it affected the verdict or the result of the trial. The burden is then cast on the other side to show that it could not, or did not, affect the result. The plaintiff was required not only to allege and prove negligence on the part of the defendant, but he was also required to allege and prove
If tbe written statement made by tbe plaintiff was erroneously admitted, as I think it was, there ought not .to be any question as to its prejudicial effect, for some of tbe con
Lastly, I cannot agree with the conclusion that, even upon the evidence in the record, a prima facie case was not made entitling the plaintiff to go to the jury on the question of the defendant’s negligence. In the first place, the written statement signed by the plaintiff and delivered to Dr. Van Cott ought to have been excluded. In the next place, while the plaintiff, in giving his testimony, admitted that the signature to the writing was his signature, yet he also testified that the injury received by him rendered him partly un-Iconscious, and that he was in a dazed and in a semiconscious condition on the evening of the accident, and had no clear recollection of Dr. Van Cott’s visit, and because of his mental .condition he had no recollection of any writing signed by him or any statements made by him to the doctor on that visit. Whether the jury believed the plaintiff or the doctor, who testified that the plaintiff was conscious and conversed rationally, and that he signed the statement after it was written by the doctor and read to the plaintiff, I do not know. It was within their provinlce to find either way. The question of whether the plaintiff knowingly and understandingly made the statements and signed the writing was in dispute. The evidence bearing thereon was conflicting. Looking at the evidence most favorable to the plaintiff on the issue of defendant’s negligence, it,. in substance, is shown that the plaintiff boarded the defendant’s car. As it was approaching Ninth South, he paid his fare when demanded, and told' the conductor that he desired to leave the car at Ninth South. The conductor said, “All right.” The car slowed down. The plaintiff arose from his seat and went to the batek platform, and stood there a few seconds, and when the car about reached the north side of Ninth South, a place where the car usually stopped coming from the north, and as testified to by him: “Just when they was going slow, I stepped down on the step. I thought they were going to stop. . . . It was pretty near stopped, maybe not quite stopped.” While so standing there, the car started up quickly and, as
I think the judgment of the court below ought to be reversed, and the ease remanded for a new trial.