Nelson v. Chicago & Northwestern Railway Co.

| Wis. | Dec 4, 1906

Siebecker, J.

The errors assigned for reversal of the' judgment go to the sufficiency of the facts to establish that Nelson suffered an injury through defendant’s negligence, the want of any evidentiary basis for the opinion evidence of the physicians examined as experts concerning any change in Nelson’s condition after Thursday evening from what it had been theretofore, and to alleged fatal defects in the hypothetical questions propounded, in that they assumed facts inconsistent with undisputed evidence, and other facts which were mere speculations and conjectures, wholly unsupported by the evidence and contrary to all reasonable inferences from the facts in the case. It is also claimed that the hypotheses'so assumed and propounded omitted many facts shown by the evidence which are necessary and essential to enable the expert to give an intelligent and correct opinion on the subject. In view of the nature of the injury complained of and the conditions surrounding it, a proper consideration of these questions necessitates a close scrutiny of the facts and circumstances adduced by the evidence to ascertain their logical and natural consequences. Eor this purpose the somewhat extended and detailed statement of the evidentiary facts, as heretofore given, is required as the basis for the inferences which are decisive of the questions raised. It may be well to consider first whether the hypothetical questions, as framed, omitted material and essential evidentiary facts, within the scope of the inquiries to which they were directed. Tbe facts, suggested under tbe objection as being material to tbe inquiry but omitted, are evidentiary circumstances and conditions, wbicb, tbougb bearing on tbe inquiry propounded, are, however, merely cumulative of wbat tbe hypothesis included, and are covered by tbe facts assumed. Omission to ¡state them in detail cannot affect tbe competency of tbe question nor tbe answer thereto, since tbe expert must be presumed to have taken into consideration all tbe facts expressly ■.stated and wbat they necessarily implied. We deem tbe questions sufficiently inclusive of all evidentiary facts within tbe scope of tbe inquiry.

It is urged with much force that it was clearly erroneous to take tbe opinion of physicians as to Nelson’s condition and to state the progress of bis illness up to tbe time be went through La Orosse on Thursday evening, without including bis condition from this time to tbe time of his arrival at home on Friday evening. This contention rests-principally on tbe ground that no correct and reliable inference can be made by experts, in cases of this nature, without taking into consideration all tbe events and facts descriptive of tbe illness from 'its inception to its most serious stage, and that from its nature it is impossible to ascertain the state and progress of tbe illness by tbe indirect symptoms of paralysis. We do not find tbe first of these claims well founded. Tbe opinions asked for were based on a series of facts wbicb are understood and relied on as descriptive and symptomatic of brain lesion ,and cerebral hemorrhage, and are said to be known and relied on in medical science. Tbe argument that this may be conceded and yet leave tbe vital objection unanswered, •namely, that none of tbe symptoms or conditions enables tbe expert to judge whether cerebral hemorrhage bad ceased on Thursday, is answered by the testimony of the experts that tbe facts proven show a stoppage of tbe hemorrhage. Tbe explanation of this conclusion, that, if it bad not so ceased, Nelson’s condition on Thursday would necessarily have varied -and have grown more serious from time to time than it in fact appeared, is not so against reason and common sense that it must be rejected as wholly incredible and conjectural. True the witnesses admitted that the extent of a hemorrhage in the brain, when it has once commenced and continues, what it may result in, and the prognosis, may be very uncertain, yet they testify that a knowledge of the progress of the ailment throughout its history enables them to know at any stage of the trouble by an arrest in the progress of the paralysis whether the incipient hemorrhage has ceased. An uninterrupted hemorrhage is said to be accompanied by marked symptoms of increasing paralysis. The attending physician and Dr. Callaghan both testify that the facts left no uncertainty as to Nelson’s condition on Thursday, and that the hemorrhage had stopped on that day. They also testify that the case showed symptoms of a renewal of the hemorrhage after Thursday and before Friday evening. We find no objection to this class of testimony. It is clearly within the field of opinion evidence. Such inferences from abnormal conditions are not within the field of common knowledge, and can only be made by persons possessed of expert knowledge on the subject. These requirements were fulfilled by the witnesses produced, and their testimony was properly received in the case. Upon like considerations it must be held that the hypothetical questions propounded to the physicians as to Nelson’s condition after he had been carried by La Crosse and up to the time the attending physician saw him the following Friday evening were not objectionable upon either of the grounds. Such testimony was properly received. With this testimony in the case, the contention that the verdict is not supported by evidence tending to show that Nelson was injured by defendant’s negligence cannot be sustained. We find that the testimony, showing a change in Nelson’s condition on Friday, is sufficiently clear in its tendency and effect. It appeared that his trouble had progressed to a worse and more serious stage from that of the day before. It also appeared that this aggravated condition was attributable to tbe fact of bis being subjected to tbe mental strain, and excitement, and tbe physical exertions be bad to undergo on account of bis stay at, bis traveling to and from, West Salem, and bis failure to obtain tbe quiet, rest, and medical attention be would bave bad bad be been at borne during tbis time.

It is further claimed that Nelson was guilty of contributory negligence in bis attempts to walk about West Salem and in bis omission to procure tbe aid of a physician at West Salem or that of bis family physician, whom be could bave reached from tbis place. It appears that neither Nelson nor his friends understood tbe nature of bis physical condition, nor were they apprised that be was suffering from a brain lesion accompanied by cerebral hemorrhage. He was not informed that bis condition required immediate medical attention. He believed that tbe physical exercise taken by him was conducive to bis improvement. Under such circumstances bis failure to seek medical advice and assistance at West Salem and bis conduct in walking about the place do not in themselves clearly show negligence on bis part that tbe court could so declare it as matter of law, and tbe determination of tbe question required submission to tbe jury upon all tbe evidence in tbe case.

Error is assigned upon the court’s instruction given the jriry in connection with question 6 of tbe special verdict. Without comment or explanation tbe court read to them question 5, whereby they were to determine whether or not, if they found Nelson’s condition was aggravated after be was carried by La Crosse, such aggravation was tbe natural and probable result of defendant’s negligence, and then proceeded, reading to them question 6, which was if the jury found tbe aggravated condition referred to in tbe sixth question existed, and was attributable to defendant’s negligence,

“then ought a person of ordinary intelligence and prudence to bave foreseen that some injury might result to tbe plaintiff in tbe light of tbe attending circumstances.”

And then instructed tbe jury:

“It is not necessary in answering tbis question for you to find that at that time, by reason of his being carried by, that aggravated paralysis might be the natural and probable result of such negligence, but it is sufficient if it now appears to have been a natural and probable consequence of such negligent act, if you find that it was a negligent act.”

The objections urged to this instruction are that it confused the ideas of proximate cause, embodied in questions 5 and 6, and failed to preserve the distinction between the two elements as there set out. These criticisms are pertinent, and the course pursued by the court was clearly a misdirection, in that the jury were instructed to pursue a course of inquiry in arriving at the determination of these questions which is directly contrary to that given for ascertaining facts by question 6, namely, whether a person of ordinary intelligence and prudence, in the light of the circumstances surrounding the. commission of the negligent acts, ought to have anticipated! that such negligence, might cause injury to some one. This fact the jury must ascertain from viewing the situation as presented at the time of the omission of the alleged duty, in the light of the circumstances attending such default, and is not to be inferred from the consequences thereof. It seems quite evident that the instruction was misleading and was improperly applied to the inquiry under question 6. However, another consideration upon this branch of the case obviates any prejudicial error such misdirection might otherwise have caused, namely, the undisputed state of the evidence material to this inquiry. As applied to the facts before us, the inquiry is whether, in the light of the attending circumstances, the''persons in charge of the train, who negligently carried Nelson in his sick condition by La Crosse, ought to have anticipated that this might cause him some injury. The facts of his affliction, which need not be here restated, were brought to the attention of the trainmen and they were requested to put him off at La Crosse, and informed that he desired to get home for care and treatment. It seems obvious that, under such circumstances, an ordinarily prudent person would- know that a sick person must necessarily be injured to some extent from the excitement incident to the worry, disappointment, and mental strain, and the additional physical exertion required for'the extra travel, his stay among -strangers at the hotel, and the delay in receiving proper rest, care, and medical attention. That defendant negligently carried Nelson by La Crosse, that his condition was in fact worse thereafter, and that this was the natural and probable result of defendant’s negligence, are facts found by the jury, thus leaving only the fact of reasonable anticipation of injury under the circumstances necessary to establish liability. As we have shown, the court should have held as matter of law that this fact was established, and hence any error in submitting it to the jury cannot avail defendant. That the duty of reasonable anticipation of injury from negligent acts may be so apparent from the facts that it is to be inferred as matter of law has been held in various cases. A reference to Allen v. Voje, 114 Wis. 1, 89 N. W. 924, will suffice. There the subject was considered and discussed and cases collected on this subject.

We must hold that the evidence fully supports the verdict and the judgment and that no prejudicial error is shown in the record.

By the Court. — Judgment affirmed.