171 Mich. 180 | Mich. | 1912
A judgment for plaintiff upon a former trial of the cause was reversed. Marshall v. Railroad Co., 163 Mich. 88 (127 N. W. 788). It was reversed because of conduct of one of the attorneys for plaintiff and conduct of the court upon the trial. Attention was called to the treatment of a certain witness by the attorney for plaintiff and his argument to the jury as objectionable. And, as to other errors assigned, it was said no reversible error was made out. The cause has been again tried, and the record presented in this court contains more than 500 pages, including 165 assignments of error. In the order in which these alleged errors are presented in the brief for appellant, the first group involves the competency of certain testimony given by medical witnesses called for the plaintiff.
The first witness testified that he was, shortly before the trial, called to examine the plaintiff for the purpose of giving testimony, and not to treat or advise the plaintiff. He was instructed by the court to omit statements made by the plaintiff and actions of the plaintiff, to state the conditions he found, and his opinion only. He stated the result of his examination, his narrative being frequently interrupted by objections, arguments, motions to strike out, and exceptions. The witness had previously testified that the plaintiff was stripped for the examination, that his general outline was noticed, and measurements of his limbs and body on both sides. His gait was tested. He was laid on a couch and his heart, lungs, his eyes, tongue, and lower extremities examined. He was tested for the knee jerk, a sharp instrument was run over the bottoms of his feet, the legs were tested for sensibility to touch, to
In the instant case it may be assumed that the plaintiff knew what responses and manifestations would be indicative of disorder and would best fit with his allegations of injury. Any movement made by him during his examination was an act, a manifestation, equivalent to an oral expression. As to many of the tests, it was the opinion of the witness that the plaintiff could not control the manifestations, as to others, that he might control them in part; and this opinion it was proper to receive, because the jury is presumed to have had no extra knowledge upon the subject. In McCormick v. Railway Co., 141 Mich. 17, 21 (104 N. W. 390), the testimony condemned was the opinion of a medical witness that the plaintiff
In cautioning the witness, the court voiced the proper rule to be observed in such cases, a rule so often stated and so long adhered to in this State that it ought not to be misapprehended. See Comstock v. Township of Georgetown, supra. The witness did not observe the admonition of the court. In so far as he obeyed it, the testimony was competent; in so far as it was disregarded, it was not competent. The point is of large significance in this case, because it is one of the principal contentions of defendant that plaintiff suffered no such injury as he alleges and as he himself details. The verdict was a very substantial one. There is much testimony tending to prove that plaintiff’s injuries were never serious, and that their effects are inconsiderable.
To the argument that the defendant introduced like testimony, it is replied that objection was not made to it, and that the testimony for defendant appears to have been introduced for the broader purpose of proving that such manifestations as the plaintiff exhibited could be and were simulated. The jury was not instructed upon the. subject.
It is to be regretted that the cause must go down again for a new trial, but, upon examination of the record, we cannot say the objectionable testimony was not prejudicial.
We notice some of the objections which may be repeated upon another trial. The testimony of a number of witnesses was offered for the purpose of corroborating the estimates made by the plaintiff of the losses sustained by him in his professional business. In favor of much of it, it may be said that it had no tendency to prove the losses claimed, and probably was not regarded as of value by the jury. It needed no testimony to prove that, when plaintiff was not at his office, he could not be doing busi
The hypothetical question put to medical witnesses by counsel for plaintiff is not open to the criticisms which are made, which seem to be aimed at nonessentials. There is, for example, abundant testimony tending to prove that plaintiff’s head was cut and bled somewhat profusely. Whether the wound was produced by falling against the side of the car, a transom, or a parcel rack is not very material. There was testimony in support of the hypothesis that plaintiff had become flat-footed as a result of the injury.
Nor was it error to admit testimony tending to prove a condition of plaintiff, attributable and attributed to the injury, affecting his health and involving probable future ill consequences. The point was considered in Brininstool v. Railways Co., 157 Mich. 172 (121 N. W. 728), and the rule was stated to be — a rule to which witnesses and the jury are carefully confined—
“That, to entitle a plaintiff to recover damages presently for apprehended future consequences of an injury, there must be such a degree of probability of such consequences as to amount to reasonable certainty that they will result from the original injury.”
We do not consider errors assigned upon the charge as given. We remark, in passing them, that most of de
The judgment is reversed and a new trial granted. Costs of this appeal will be taxed as though the printed record contained no more than 250 pages.
