227 Pa. 641 | Pa. | 1910
Opinion by
March 28, 1910:
Mary McDyer, widow of James McDyer, recovered a ver
James McDyer was a milk dealer: On the day of the accident he was driving a one-horse wagon, and was accompanied by his son, a lad of seventeen. He had served a customer on the south side of a certain street, in the middle of which was a trolley line. He drove a short distance and before reaching the next intersecting street attempted to cross the trolley tracks at an oblique angle in order to get on the opposite side to serve another customer. According to the testimony of the son, immediately before crossing they stopped about three feet from the nearest rail and looked up and down the trolley line; he was listening, but did not see or hear any car; they then started across the tracks “very slowly”; when the horse had cleared the tracks and the wagon was between them, a car ran into the rear wheel; he says it was about one minute from the time they stopped and looked until they were struck by the car. The wagon was upset and pushed possibly sixty to 100 feet, McDyer being thrown out and so injured that he died about two and one-half months thereafter. Each side produced a number of witnesses, and there was much conflicting testimony, but the plaintiff’s witnesses in a general way bear out the story as we have given it. One witness for the plaintiff stated that the car was going very fast; and another that just as the team crossed the track he saw the top of the car over the crest of the hill, and that it came at a rate between twenty-five and thirty-five miles an hour. Another witness stated that the car was about 400 feet away when the horse was on the track; and a witness for the defense testified that one could see in the direction from which the car approached at least 725 feet. On this state of facts it cannot be said as a matter of law that the motorman was free from negligence, or that McDyer was guilty of contributory negligence. Both of these points were for the jury, and were properly submitted in a comprehensive charge. McDyer was not bound to stop before crossing the track, but he did so; and we have positive testimony that he looked at
Much of the argument of counsel for the appellant goes to the weight of the evidence on the various points involved. Whether or not the jury properly weighed the evidence
It is complained that the court erred in overruling defendant’s objection to the question addressed to the plaintiff : “ What were the average net earnings of Mr. McDyer in a year during the time he was engaged in the milk business, per year, if you know? ” We see no error in the ruling. Although the testimony sought to be elicited, standing alone, would not have been sufficient to base an estimate of damages upon, yet the question itself was clearly relevant and competent, and the witness was in a position to give the desired information. As this is the only assignment going to the sufficiency of the evidence on the question of the proof of the damages, we will not further discuss that branch of the case.
On cross-examination as to his qualifications as a physician, Dr. Gallagher, a witness for the plaintiff, stated that he had been licensed and duly registered in Pennsylvania and his testimony was admitted without objection. He stated that he was the attending physician, and gave the details as to McDyer’s condition and ailments, expressing the opinion that the patient had died as a result of his injuries from the accident. After this, counsel for the defendant produced evidence to show that Dr. Gallagher was not a licentiate of the medical council of Pennsylvania, and that his statements to the contrary were untrue; which was followed by amotion to strike out all of his testimony.- This was refused, the trial judge stating: “The court declined to strike out the testimony of Dr. Gallagher. He was one of the physicians who attended upon Mr. McDyer, the deceased, and he was the physician de facto if not de jure. It may affect his credibility, but it would not be a warrant for the court to strike out his testimony, the fact he was not registered.” After testimony has been received without objection, the refusal to strike it out is not reviewable. In such a case the only course is to request the court to instruct the jury to disregard the testimony, and upon a refusal, to assign error: Ashton v. Sproule, 35 Pa. 492; Oswald v. Kennedy, 48 Pa.
Several doctors were called by the defendant, and after stating that they had either heard the evidence or read the notes of testimony of the witnesses named in the following question, they were asked: “From your experience as a doctor and your knowledge of medicine, and the information you received from the evidence of Dr. Gallagher, supplemented by the evidence of Drs. Hill, Schnifferstein, and Young, do you have any fixed opinion as to the cause of McDyer’s death?" In each instance an objection to this question was sustained. All of the doctors mentioned, with the exception of Dr. Gallagher, were witnesses for the defendant, and their testimony was conflicting in many essentials with the testimony given by him. An expert witness, after being first acquainted with the whole of the particular part upon which he is to pronounce, may be asked to express an opinion upon any defined portion of the testimony, which is not contradictory in itself, and the truth of which is expressly assumed; but he may not be asked to first ascertain and determine the conflicting elements, and then to express-an opinion upon his conclusion: Yardley v.- Cuthbertson, 108 Pa. 395. As the question was framed, this is precisely what the witnesses would have been obliged to do, and for that reason the objection was properly sustained.
Upon the whole case we discover no reversible error, and no useful purpose will be served by a further discussion of the assignments. They are all overruled and the judgment is affirmed.