152 Ky. 600 | Ky. Ct. App. | 1913
Opinion of the Court by
Affirming.
Collin A. Davies lield a policy of insurance in the Travelers Insurance Company, insuring his life against injuries effected directly through external, violent and accidental means. The policy was for $5,000, and with' its accumulations, amounted at the time of the insured’s death to $6,700. It provided for payment of double, indemnity in case of death from injuries sustained while riding as a passenger upon a railroad passenger car. The insured died on April 8, 1909, and this action was brought by his wife, who was the beneficiary, to recover on the policy, alleging that his death was due to an injury effected through external, violent and accidental means while he was riding as- a passenger upon a railroad passenger car. Upon the trial of the case before a jury the plaintiff recovered. The defendant appeals.
The proof for. the plaintiff showed in substance these facts: The insured was for many years and at the time of his death, the superintendent of. the Lexington and Cincinnati division of the Louisville and Nashville Bail-road Company. He was five feet, eight inches high, and
On the other hand, the proof for the defendant was in effect that the ear was running very slowly; that there was no lurching of the car sufficient to throw anybody from a seat; that nobody was thrown off the seat; that Davies for some months had suffered from indigestion; that the muscles of the abdomen were rigid, indicating that there was trouble there. The physicians who testified for it stated that intestinal troubles were the more common cause of pancreatitis, and that only a very violent blow would cause it, the pancreas lying back of the stomach under the ribs, and in a very much protected part of the body. It also proved that Davies said to the man who came into his office that he had indigestion, that he had had these spells, but they always left him; that this one was a little harder .than usual. None of the family when the doctors were called in told them anything of
We think it may be fairly assumed from the proof that neither the family physician, nor any member of the family, attributed Davies’ sickness to what had occurred on the car, until the operation was performed, and it was learned that acute hemorrhagic, pancreatitis had set up; and we think it may be fairly inferred that Davies was of the same opinion, and thought that he was suffering from a digestive trouble. Still the fact remains, if the evidence for the plaintiff be true, that Davies was in perfect health up to the time of the accident on the car. The weight of the evidence is with the plaintiff on this question. He was a robust man, weighing about 175 pounds, looking ruddy and healthy and showing no signs of any trouble with his digestive organs. Pie had had no medical attention for more than a year except for a cold or something of that sort. Pancreatitis is a disease that is little known. It has become familiar to the medical profession only within the last ten years, and it is not strange that Davies and his family did not attribute the trouble to the accident on the car. The doctors gave it as their opinion not only that such an injury as here was shown to be received might cause pancreatitis, but that in their judgment the injury was the cause of the disease, if he was up to that time healthy. The weight of the evidence is with the defendant as to the fact' that the car was running slowly, and that its oscillation was not so violent as to throw a man off the seat. But the credibility of the witnesses was for the jury. They heard and saw the witnesses;' there were circumstances, tending to sustain the testimony for the plaintiff and we cannot say the verdict of the jury is palpably against the evidence.
It is insisted chiefly that the court erred in the admission of the expert testimony. It is said that by hypoT thetical questions appellee’s experts were permitted to decide pivotal questions in the case which were for the jury. We have read the evidence with care, and we do not find any error in this regard. No witness was allowed to state what in his opinion under all the evidence caused Davies’ death. Each witness was only allowed to state what was the cause of Davies’ death upon a hypothetical state of-case set out in a question, the state of facts being the facts shown by the.proof for the plaintiff. Whether these facts existed the jury were to determine,
It is also insisted that the court erred in allowing medical authorities to be used on the trial in the cross examination of the defendant’s expert witnesses. One or two of the physicians who were introduced on the trial had previously seen one ease of pancreatitis. But none of them had seen enough of the disease to speak as experts upon it independently of medical authority, and they all relied on and referred to medical authorities for the conclusions which they stated. When the experts for the defendant had testified that pancreatitis could not be caused by a certain injury, the court allowed them on cross-examination to be asked if certain medical authorities, known to be authoritative, did not give instances of pancreatitis having been so caused, and the statements of these authorities were permitted to be read to the witnesses as a part of the question. We do not see that there was any. error in this. The examination followed the rule laid down by this court in Williams v. Nally, 20 R. 245, and Clark v. Commonwealth, 111 Ky., 443. While there is some conflict of authority on the question, we see no reason for departing from the rule which we have laid down, which seems to us reasonable and just. When one doctor testifies that the medical authorities teach so and so and another doctor testifies that they teach the contrary, the jury would have little light to guide them in determining between the conflicting statements. But if the medical authorities referred to are presented to the witnesses, and read in the hearing of the jury, they can form a more intelligent idea as to which of the witnesses is supported by the text. The rule is that medical books are not admissible as affirmative evidence, and the plaintiff did not attempt to introduce any books as affirmative evidence of her ease. The medical authorities were only brought in on the cross-examination of a physician, who had undertaken to state to the jury what the teaching of the authorities was. - Of course no book should be allowed to be brought in for this purpose which is not a standard authority; but the standard authorities may be read as a part of a question to a witness on cross-examination, to test the.accuracy of his-information and the value of his expert testimony.
The question of whether the notice was given in time was fairly submitted to the jury by the court’s instructions, and under all the facts we do not see that there was any substantial error on the trial to the prejudice of appellant.
Judgment affirmed.