108 Ark. 387 | Ark. | 1913
(after stating the facts). It is urgently insisted that the court erred in permitting the medical experts, Doctors Brown and Jones, to testify as to the cause of appellee’s condition from a history of her case as related to them by her, and repeated by them to the ■jury, and with this contention we agree.
There was no testimony relating to the occurrence of the injury as claimed by appellee, except her own statement of it. All the employees of the railroad company on the train testified that the train stopped a reasonable length of time for the taking of passengers aboard; that there was no rough handling or unusual jerking of it, and that it did not start up and stop again, after stopping at first, as appellee claimed it did. The description of the occurrence of the injury, as related to these two physicians and by them to the jury, as part of the history of the case, upon which they based their opinions, necessarily resulted in bolstering up the statement of the appellee as to the occurrence of the injury. The jury might have inferred from it that she told the truth upon the stand, about receiving the injury, because she had related the occurrence to Doctor Brown, the first physician, in the same way on the day she said it was received, and to the next physician, Doctor Jones, thereafter. That since she had told it, alike each time to these physicians, as related by them to the jury, that it must be true.
Expert witnesses are not called to decide disputed questions of fact, but only to give, opinions upon the matter upon which their opinions are sought that the jury may determine the question.
Mr. J ones, in his work on Evidence, second edition, section 349, says: ‘ ‘ The declarations of the party to his physician, or to other persons, as to the cause of the injury, or those charging liability upon other persons, are not admissible when not made at the time of the injury. * * * The narration of past occurrences, for example, the manner in which a party has been injured, are no more competent when related by a physician than when stated by a nonprofessional witness.”
In 5 Enc. of Evidence, p. 609, it is said: “The rule which allows a medical expert to give a clinical history of the case, including what was told him by his patient, does not extend so far as to allow the witness to repeat what he was told as to how personal injuries were caused.” See also Lawson, Expert and Opinion Evidence, page 176; Bogers, Expert Testimony, page 115; Wigmore, section 1722.
In Ringelhaupt v. Young, 55 Ark. 132, this court said: “As to how the opinions of experts should be elicited and adduced as evidence, when the expert is not personally acquainted with the material facts in the case, Chief Justice Shaw, in delivering the opinion of the court in Dickinson v. Fitchburg, 13 Gray 546, 556, correctly stated the law as follows: ‘In order to obtain the opinion of a witness on matters not depending upon general knowledge, but on facts- not testified of by himself, one of two modes is pursued: Either the witness is present and hears all the testimony, or the testimony is summed up in the question put to him; and in either case the question is put to him hypothetically, whether if certain facts testified of are true, he can form an opinion and what that opinion is. ’ Thompson on Trials, sections 593, 595, and eases cited.”
In that case, the expert witness was allowed to give his opinion upon what he knew about the matter, because he did know the facts upon which it was based.
And in St. Louis & S. F. Rd. Co. v. Fithian, 106 Ark. 491, where it was claimed that the court had erred in permitting expert witnesses to answer hypothetical questions that did not include a material undisputed fact, a case where the witnesses were testifying as to the proper construction of a railroad track upon a curve from which a switch track led off at a different curvature, after an examination of the place after the train wreck and the injury had occurred, the court said:
“It was proper to permit the expressions of their opinion under the circumstances, and appellant could have tested their knowledge of the existing conditions and discovered whether this fact was taken into consideration by them in forming their opinions, if it had desired to do so, upon proper examination.”
There is no question but. that it would have been error to permit the relation, by the physicians, of the history of the ease, including a statement of how the injury occurred, if it had resulted in the death of the appellee before the trial. It could not be considered part of the res gestae, and otherwise would have been only hearsay evidence, and not admissible. Fordyce v. McCants, 51 Ark. 509.
Testimony relative to .the statements made by the in-, jured person to his attending physician as to how the accident happened, and what caused it, is not admissible in a suit to recover for alleged negligent injury. .It is but hearsay, when not a part of the res gestae, and the fact-that.it is. recited by the physician to whom it .was related as-the. history of the case when the injured person sought treatment for the injury, does not make it any the. less- so. . Halloway v. Kansas City, 184 Mo. 19 ; Federal Betterment Co. v. Reeves, 4 L. R. A. (N. S.) 460; Jones v. Portland, 88 Mich. 598, 16 L. R. A. (N. S.) 437; Lee v. K. C. So. Ry. Co., 206 Fed. 765.
In Polk v. State, 36 Ark. 124, this court said:. “The proper course is to take the opinion of the expert upon; the facts given in evidence; not as to the merits. of the; case, or the guilt or innocence of the prisoner, but as to the cause of the death, so.that the jury may first.-determine whether any crime has-been committed by any one at all. If the expert has been present, and heard all the evidence as to the symptoms and. appearances, detailed upon the trial, he may give his opinions upon the. facts so stated, if they he fo'und true.hy the jury,-but, can not, himself, judge of their truth. If he has not been, present and heard them, they may be repeated to him, in the presence of the court and jury, and his opinion concerning them required upon the same supposition of their truth. But, in either case, the. opinion is upon a hypothetical state of affairs, and its value depends upon the view the jury may take of the truth of the facts,’ to which witnesses have sworn. It can not be based upon any facts which -the- expert may have heard outside, and may1 believe to be credible; and, if based upon his own' knowledge of particular facts, he should, himself, detail the facts,' and give his opinion thereon. ”
In view of the fact that no witness corroborated the statement of the appellee as- to the occurrence of the injury, and that the testimony of all the train crew tended to show that there was no stopping or starting of the train as she claimed at the time of the injury, and' there was no complaint made by appellee, at the time, that she had been injured, it can not be said that her statement relating how the injury occurred to the physicians.from whom- -she sought treatment for it as recited by them before the jury, as a foundation upon which to base an expert opinion as to the cause of the injury, was not prejudicial, notwithstanding the proof in the case as made by appellee’ showed the injury to have occurred in the same way. It was necessary for her to prove that she had been injured under such circumstances as would show negligence upon the part of the railroad company before any recovery could be had, and since this incompetent testimony tended to strengthen her case before the jury, it was necessarily prejudicial.’
Other assignments of error are insisted upon, relative to the giving of an instruction upon the measure of damages, and also the excessiveness of the verdict, but it will not be necessary to pass upon them.
For the error indicated, the judgment is reversed and the cause remanded for a new trial.