63 Wis. 664 | Wis. | 1885
This is an action brought by the respondent to recover damages of the defendant for malpractice as a surgeon in setting and caring for a broken leg of the respondent. On the trial in the circuit court the respondent recovered over $1,600 damages. Judgment swas entered upon such verdict, and the defendant appealed to this court.
A motion for a new trial was made in ’ the court below, and denied. One of the grounds of such motion was that the verdict was unsupported by the evidence. The denial of the motion on that ground is assigned as one of the
The question of negligence and carelessness on the part of the surgeon in the treatment he gave the plaintiff’s leg, while it is one which the jury must necessarily determine upon the whole evidence in the case, is still a question which must be determined mainly upon expert evidence. Certainly the claimed misconduct of the surgeon is not so flagrant that a man entirely ignorant of surgery can form an intelligent judgment as to the propriety or impropriety of the treatment given by the defendant, unaided by evidence of men skilled in surgery and having superior knowledge as to what treatment should have been given to the broken leg under all the circumstances. The defendant was therefore entitled to show, if he could, by witnesses having superior knowledge and skill in surgery, that the treatment he gave the plaintiff’s leg was such as a surgeon of ordinary knowledge and skill in his profession would and ought to have given. The exclusion of any material evidence of the expert witnesses offered by the defendant which had a direct tendency to show that his treatment was proper, and such as a surgeon of ordinary learning and skill in his profession would have adopted in the case, must necessarily prejudice the defendant.
The complaint made by the plaintiff was that the defendant had so carelessly and negligently treated and cared for his broken limb that the bones had not united at the frac
We are very clear that the objection should have been overruléd. The witness had testified as to the condition of the leg when he first saw and examined it. The condition in which he described the limb was undoubtedly shown on the part of the plaintiff as tending to show improper treatment on the part of the defendant, and it seems to us very clear that the defendant had the right on the cross-examination of the witness to disprove the inference of negligence on his part sought to be drawn from its condition, by showing that such condition might, and often did, result from causes other than negligence on the part of the attending surgeon, and that it did often result under the best of care. The evidence was certainly competent either as direct or cross-examination, especially in a case of the kind at bar, when there is little if any evidence fixing any particular acts of want of care or negligence on the part of the defendant.
The propriety and force of the evidence sought by the defendant from this witness is made apparent from the fact that the plaintiff had examined other medical experts upon that point, and they had testified without any qualification that if the patient was of ordinary health, and the fracture had been properly set, there ought to be a good union in thirty-eight days, so that the patient could lift his limb. There was no suggestion in the evidence of the other expert witness on the part of the plaintiff that a ligamentous union would result from any other cause than careless setting of the bone, or negligent attendance thereafter. It was proper and important for the defendant, therefore, to show, if he could, that such ligamentous union would be the result of other causes than the want of proper care and attendance on the part of the surgeon.
A similar question was asked Dr. Meacher, a witness for
It is also assigned as error by the counsel for the appellant that the court refused to allow the expert witnesses to answer certain hypothetical questions proposed by the defendant on the trial. As to the propriety of allowing expert witnesses to give an opinion upon a hypothetical case stated, the practice has frequently been approved by this and other courts. See Luning v. State, 2 Pin. 215, 220; Wright v. Hardy, 22 Wis. 339; Bennett v. State, 57 Wis. 69; Hunt v. Lowell G. L. Co. 8 Allen, 169; Kempsey v. McGinniss, 21 Mich. 123; Woodbury v. Obear, 7 Gray, 467. And it is clearly a more appropriate way than to allow the expert witness who may have heard the evidence in the case to give his opinion upon his understanding of the evidence so given.
The reason for permitting hypothetical questions to be propounded to an expert witness, rather than to allow him to give his opinion from hearing the evidence given in court and basing an opinion upon that, was stated by this court in Bennett v. State, 57 Wis. 85, 86. The reasons are stated as follows: “It is almost impossible that all the testimony given in the case, coming from many witnesses and elicited by a long examination, should be entirely uncontradictory, or should be so plain that different inferences would not be drawn by different men. And to permit- an expert to give Ms opinion, which is to go to the jury as competent evidence, upon such a mass of testimony, without any explanation as to what state of facts such an opinion is based upon, is, in effect, taking the case from the jury and deciding it upon the understanding of the witnesses as to what facts the
It does not appear very clearly, from the record in the case at bar, upon what grounds the learned circuit judge held that the questions propounded by the appellant to the expert witnesses were incompetent or objectionable; but it seems probable, from certain intimations made by the learned judge, that the questions were objectionable because they were not based upon the facts as proved by the testimony. So far as we are able to ascertain from the record, this objection does not apply to several of the questions rejected. It may be true that the court ought not to allow hypothetical questions to be propounded to an expert witness which are plainly outside of the case and based upon a statement of facts as to which there is no pretense that they are proved by the evidence in the case. The rule in that respect must be that, in propounding a hypothetical question to the expert, the party may assume as proved all facts which the evidence in the case tends to prove, and the
Under this rule we think the court erred in sustaining the objection of the plaintiff to the questions propounded to Dr. Garry, a witness for the plaintiff, on his cross-examination, set out in the third and fourth assignments of error by the counsel for the appellant in their printed brief; also in sustaining the objection to the questions propounded to the witness Dr. Jenkins referred to in the eighth and ninth assignments of error in the brief of the counsel for appellant.
The appellant also alleges as error the refusal of the court to instruct the jury as requested, and which instruction is the appellant’s twelfth assignment of error. ¥e think the court, in the general charge, submitted the question of the plaintiff’s contributory negligence quite fully and fairly to the jury, and that there was no error, therefore, in refusing to give the instruction asked.
The charge of the court seems to us to have left the questions in the case, as a whole, fully and fairly to the jury, and is not subject to just criticism, unless it be the remark made as to hypothetical questions. The court having-refused to permit most of the hypothetical questions propounded by the defendant to the expert witnesses to be answered, presumably on the ground that they failed to cover essentially all the facts necessary to a proper opinion upon the case, it is claimed by the counsel for the appellant that the court was not called upon to state to the jury that
By the Court. — -The judgment of the circuit court is reversed, and the cause is remanded for a new trial.