72 A. 606 | Md. | 1909
Lead Opinion
This is an appeal from a judgment rendered in favor of the appellee against the appellant for injuries alleged to have been sustained by her on Howard Street in the City of Baltimore, through the negligence of the defendant. The narr. alleges that by and through the negligence and carelessness of the defendant one of its wires, charged with electricity, "fell down in said plaintiff's way on said Howard Street from its elevated and proper position and came in contact with the plaintiff and gave her an electric shock, and while it was falling towards said plaintiff said wire was discharging great sparks of electricity, and as a result of the falling of said wire, as aforesaid, which was caused by the negligence of said defendant, its agents and servants, the said plaintiff was placed in a perilous position, and in her efforts to extricate herself from said dangerous position, and to get out of the path of said falling and electric light wire, the plaintiff was seriously and permanently injured and damaged to her nervous system and she was injured about her body and otherwise," etc. The wire which dropped into the street is what is called a span-wire and was stretched across the street to hold up the wire on which the trolley runs. It was in some way pulled out of the ring which holds it to the pole and it fell over the trolley wire, thereby becoming charged with electricity. The plaintiff contended that coming in contact with the wire caused the injuries, while the theory of the defendant was that so far as she sustained any injuries they were the result of fright and not from contact with the wire. The evidence on the part of the plaintiff was to the effect that she was left in a very serious nervous condition, became unconscious at times, suffered from convulsions, etc. Her physicians testified that she was suffering from "traumatic hysteria" — which was described by them to be hysteria produced by shock or injury, as distinguished from that caused by disease. *449
Ten exceptions were taken to the rulings of the Court on the evidence, and the eleventh embraces the rulings on the prayers. The Court granted the two prayers offered by the plaintiff, and the sixth, ninth, eleventh, twelfth, thirteenth, seventeenth, eighteenth, nineteenth and twentieth offered by defendant, and rejected its first, second, third, fourth, fifth, seventh, eighth, tenth, fourteenth, fifteenth and sixteenth, and overruled its special exception to the plaintiff's first.
The first, second and third exceptions can be considered together. Dr. Baum had testified that from the history of the case he had received he concluded that "the results of this case were the results of a shock." He was then asked: "When you say from your examination of the case you diagnosed it as traumatic hysteria or nervous condition produced by shock what kind of a shock do you mean?" To which he replied: "Well from the history I elicited it was rather an electric shock or fright." Perhaps the word "rather" in the record was intended to be "either." He was then asked: "Tell the jury whether or not her condition could have been produced by fright merely without receiving an electric shock, or by the electric shock, if you say it could have been produced by either; tell them which, in your judgment, was the most probable cause of it." That question was objected to, but the Court overruled the objection, and the witness answered: "It is probable for either to have caused it; it is possible for an electric shock to have caused it; it is my opinion that an electric shock would have caused her condition." That ruling is presented by the first exception.
His testimony then proceeded: "You have said either of them could; it is possible either of them could? A. Yes, sir. Q. Are you able to say as a physician, from her condition as you found it, which, in your judgment, probably caused her condition — shock from mere fright or electric shock?" The latter question was objected to, but, the objection being overruled, he answered: "I would say that the more probable was electric shock." That constituted the second exception; and immediately after that answer, the defendant made a *450
motion to strike it out, which the Court refused, and that ruling is embraced in the third bill of exceptions. It was said inWilliams v. State,
In this case there was no evidence that the plaintiff was injured in her efforts to extricate herself from a perilous position, as alleged in the latter part of the above quotation from the narr., and the question raised by the pleadings and evidence was whether the wire "came in contact with the plaintiff and gave her an electric shock." Indeed, one of the prayers afterwards granted instructed the jury that if they believed the plaintiff received no bodily injury from contact *451 with the electric current emanating from the broken wire, but that her bodily injury and present condition were due to fright or nervous shock, caused by the flash or noise produced by said electric current, then the plaintiff was not entitled to recover, and the plaintiff's own prayer required the jury to find that the wire came in contact with her peerson or clothing and gave her an electric shock. The case as submitted to the jury was practically the same question asked Dr. Baum in the second bill of exceptions, excepting he was asked which of the two shocks probably caused her condition. Now if it be conceded that it is proper to ask a medical expert which of two possible causes was the probable or approximate one, surely he must be shown to have such knowledge of the effects of both as to be able to speak intelligently of them. This witness had not only not qualified himself as an electrical expert, or as a medical one acquainted with the effects of an electric current, but his cross-examination shows that he was not so qualified to speak. We will quote it: "Q. What kind of electric shock would she get if the wire did not touch her person? A. Apparently the wire might shock from fright; it is my opinion that it was the electric shock; whether there was contact was the question; I think you had better let some electrical expert explain that." Mr. Field: "You are not an electrical expert? A. No, sir. Q. You answer this was an electric shock; I did not know whether you meant a shock from electric current or fright produced by the electricity? A. I am unable to determine what the amount of the shock was received or anything of the sort. Q. If the testimony shows that there was no contact between the wire and the person would you still say this party was suffering from an electric shock? A. I am unable to answer that."
It is true that evidence was not in the record when the rulings on these exceptions were made, but it emphasizes the importance of seeing that a witness is qualified to speak as an expert before admitting his testimony. It shows that the opinion expressed by the witness was not founded on any special knowledge which qualified him as an expert. The theory *452 of the defense was that there was no contact between the wire and person, and yet the witness said he was unable to answer the question last above quoted. He had already said that the plaintiff's condition might have been caused by fright without receiving an electric shock, or by an electric shock, and although he is not an electric expert, and has not shown that he knew what effect on the body an electric current would have, if the wire did not come in contact with the person, he was permitted to testify: "I would say that the more probable was the electric shock." The answer to the question in the first bill of exceptions is not so objectionable as that in the second, for it only went to the extent of saying that it was probable that either fright or an electric shock might have caused her condition, but by the answer to the question in the second bill of exceptions he in effect said that an electric shock caused her condition. Again, the question assumed that either the shock from mere fright or an electric shock caused it, and was for that reason objectionable, as the defendant did not concede that it was caused by either, but on the contrary offered evidence tending to show other causes which were in part, at least, responsible for her condition. The question in the first exception was not altogether free from that objection, but the answer could not have done any particular harm, as we suppose that it cannot be denied that it was possible for an electric shock to have caused the condition of the plaintiff, but there was reversible error in allowing the question in the second bill of exceptions to be answered, and in not striking out the answer when the motion was made. The answer was not really responsive to the question, as the witness did not say whether he was able to say as a physician which probably caused her condition, but he proceeded to give his opinion.
We do not understand the fourth exception to be pressed. The fifth was to allowing the attending physician of the plaintiff to answer the question, "Whether or not a young woman in her condition is in a condition in which it would be proper for her to marry." The ground of the objection urged *453 is that the question did not state what condition was referred to, but on cross-examination he was asked what condition he did refer to, and replied: "I referred simply to her nervous condition, the condition of her nervous system." The appellant was not therefore injured by reason of the condition referred to not being more explicitly stated in the question. But regardless of that, a similar question was asked Dr. Wilson, the answer to which went before the jury without objection. While we do not think there was any reversible error in the ruling of the Court, such testimony ought not to be admitted, as such opinions of physicians must be more or less speculative or conjectural, if not misleading, when they are based entirely upon the nervous condition of parties.
The seventh exception was to the following question asked Dr. Baum: "Will you kindly tell the gentlemen of the jury what will be the ultimate effect of the condition from which the plaintiff is suffering, as you have testified, upon her mind?" to which he answered: "My opinion is that it will progress and that she will eventually lose her mind." That is objected to because Dr. Baum had laid no foundation as an alienist to give such testimony. In answer to that it may be said in the first place that he had been a practicing physician since 1895, is a graduate of the Baltimore Medical College, and was connected with the Maryland General Hospital for six years. He attended the plaintiff when she received the injuries complained of for four or five days; was then called in again on May 10th, saw her then and the next day, and her condition was such that he called in Dr. Wilson in consultation. He advised her to go to the country so as to avoid excitement, and did not see her again until a few days before the trial. There would seem to be no doubt under these circumstances he was competent to express his opinion as to her mental condition under the decisions in Crockett v. Davis,
It cannot be doubted that there may be cases in which the opinions of physicians on such subjects may have undue weight. The opinion of a family physician of a juror will *454 naturally have more influence on him than that of some other physician whom he does not know, or does not have the same confidence in, and hence trial Courts ought to be careful to see that a physician so called upon to testify has either had the opportunity to form a correct opinion from his own knowledge of the person whose mental condition is being inquired into, or that it is based on all the facts in the case reflecting on the subject, which facts the Court should be satisfied are sufficient to enable him to form an intelligent opinion from. The weight of the testimony is for the jury, but its admissibility is for the Court to determine. But the law of this State does not require the physician to be an alienist — in the sense that he is a specialist in that line. If such were the law it would often deprive the jury of such aid as an honest and intelligent physician could give them in reaching a proper conclusion. It would greatly add to the expense of such trials, and would often deprive those of limited means of medical testimony, if no one but a specialist should be permitted to testify. As was said inCrockett v. Davis, on page 149 of 81 Md., in giving the reason why a physician can testify as to the mental condition of a testator, without first stating the facts and circumstnaces on which his opinion is based: "That is because he is presumed to have become, from special study and experience, familiar with the symptoms of mental diseases, and therefore qualified to assist the Court and jury in reaching a correct conclusion." There is an excellent discussion of the subject in 1 Wigmore on Evidence, sect. 687.
Nor do we find the form of this question objectionable, as it was based on the condition the witness had testified she was in, as found from his own attendance upon her, and examinations of her by himself and with Dr. Wilson. There is no error shown in that exception, but if there had been it would not have been reversible error (unless this Court could see that there was or may have been injury to the defendant, which does not appear in this case), for the same testimony was admitted without objection from Dr. Wilson. In regard *455 to the latter statement we deem it proper to say as affecting a matter of practice, that if counsel wants the benefit of such exception it would always be well to either object to the admissibility of similar testimony or have it understood that it is admitted subject to exception. When testimony has been admitted and an exception noted, counsel may deem it necessary to cross-examine the witness on the subject, and if it is simply a cross-examination he ought not to be deprived of his exception, provided the record shows he does not intend thereby to waive it, and that ought to be inferred when it is strictly cross-examination. There is perhaps some confusion in the cases on this subject, but the rule ought not to be carried to the extent of placing an attorney in the position that he must either waive his exception or permit the evidence in chief to stand without cross-examination. It is said in 2 Ency. of Pl. and Pr. 523, that a party cannot complain of the action of the trial Court "that illegal or incompetent evidence was admitted which was called out by his own counsel on cross-examination of his opponent's witness, but when an exception is duly taken to the admission of illegal evidence it is not waived by cross-examining the witness with respect to it." We think that is the correct rule, and any statement in the opinions of this Court to the contrary must be modified to that extent.
The seventh exception was taken to the ruling of the Court in permitting Dr. Wilson to answer the question: "Will you tell his Honor and the gentlemen of the jury whether or not in your judgment the condition in which you found Miss Corbin on May 11th was such that might naturally and probably have been produced by an electric shock?" Dr. Wilson had testified that he had two electric shocks himself, and had had three patients suffering from electric shocks. It is true that the latter were shocks from lightning and not from electric wires, but we think that such experience as he had had, taken in connection with his medical knowledge, was sufficient to justify the Court in permitting him to answer the question, which did not have in it the objection we have referred *456
to above in those asked Dr. Baum, but was merely whether the condition of the plaintiff "was such that might naturally and probably have been produced by an electric shock." It was held inBlock v. Milwaukee St. Ry. Co.,
The eighth exception was not pressed. The ninth was taken to the action of the Court in stopping a witness in his answer to a question. The answer was objectionable because it was mere argument, but at any rate later on he testified on the same subject, that it was impossible for the wire to have struck her, which was the question he was answering when interrupted.
We find no error in the ruling on the tenth exception. Dr. Bevan did qualify himself as to the effect of an electrical current upon the human body, and he was allowed to testify fully as to that, but the question was whether, assuming the facts stated, amongst others, that the wire did not touch the person or clothing of the plaintiff, she could have received an electric current from the wire. As to that, the doctor was no more competent to speak than any other intelligent witness. He did not profess to be an expert on electricity, excepting as to its effect on the human body. He in substance so stated in a subsequent part of his testimony, but there had *457 been no attempt to prove that he was, when the question objected to was asked.
This brings us to the last exception, which embraces the rulings on the prayers. The first, second and seventh prayers of the defendant and the special exception to the plaintiff's first prayer can be considered together. They present the question whether there was legally sufficient evidence to entitle the plaintiff to recover. The only difference between the first and second is that the latter refers to the pleadings, while the first does not. The seventh asked the Court to instruct the jury that there was no evidence legally sufficient to show that the wire touched the plaintiff's person or clothing at all, and the exception to the plaintiff's first prayer was on the ground that there was no evidence that the wire came in contact with the plaintiff and gave her an electric shock, and that there was no negligence on the part of the defendant.
There was certainly some evidence tending to show that the plaintiff received a shock of some kind, whether or not it was entirely the cause of her condition, as described by the doctors. There was also evidence by some of the defendant's witnesses that if the wire touched the clothing without touching the skin, it would have shocked the plaintiff if the clothing was in contact with the skin, and one of the defendant's experts, in answer to the question, "If the trolley struck her clothing would it have left any mark on her clothing?" replied: "No, sir; I can't say that it would," although he did say that if it struck the skin it would leave a mark. The context shows that he was speaking of the wire when he spoke of the "trolley." It was shown, therefore, that the plaintiff might have received an electric shock through her clothing without leaving any mark. The plaintiff testified that she was going west on the north side of Lexington Street, and when she reached Howard Street she saw a car on the opposite side, going south on the west track, and, to use her own words, as given in the record, "I kept on going, and the car started, and the trolley came off and kept bumping against *458 the wires; I did not pay any attention to that and walked on, and the car had gone far enough for me to pass behind it when I reached the track. When I was just about to reach the track thewire came down into my face; the wire came down, and there was such a flash right in front of my eyes — I took it to be so. I remember trying to run, but I don't know what happened after that." Again she said that "the flash was just like a great flash of fire; like lightning, only it was much larger than a lightning flash, covering witness's whole face." She could not say whether the wire touched her person or flesh, but if her testimony is correct as to the flash there is every reason to believe that it at least touched her clothing, for the testimony shows that there is no flash unless the wire comes in contact with something. A policeman testified that "he saw the wire that came down; that it was still hanging; that when it would strike anything it would throw a flash; when it was hanging loose it did not throw any." Several witnesses testified that she was about the east rail of the north-bound track on Howard Street when the flash came; she turned and was about to fall near the curb when she was caught. The wire was suspended about fifteen feet above the track, and when it broke from the pole, and hung over the trolley wire, it might readily swing backwards and forwards. One of the defendant's witnesses said the wire moved "three or four feet around" after it fell, and another of them said that the plaintiff was near the track, and about the time she threw up her hands he saw a flash at the back of the car — "right about at the trolley pole at the back of the car." Mr. Thiel testified that "he saw a flash from the trolley pole or trolley wire, and then the car started and went about six feet; it did not cross the curb; there was a slight noise, but not any more fire; then the car moved off again, and when the car moved off the second time witness saw some flashes about right back of the car, just about the same as if you light about two or three parlor matches, towards the west rail, towards the rail on the west side of the street." He also said he saw the wire afterwards, and "it was lying between *459 the two tracks on the west side, just about the west side track of the south-bound car; it was lying in the track where the car had gone down." He said he did not see the plaintiff until she was about to the curb, that she seemed to faint and some gentleman caught her.
So, although the evidence of some of the witnesses contradicted her, if her statement is true she saw the trolley "bumping against the wires," and then walked on and the wire came down into her face when the car had gone far enough for her to pass behind it. She turned back toward the curb, would have fallen if someone had not caught her, and was unconscious for a considerable time. While jurors and others who are not electrical experts do not know a great deal about the effects of electricity, they do know some of them. Anyone might conclude from the testimony that she must have come in contact with a live wire to have produced the effects proven, if she had never had any nervous trouble before, as she swore she had not, and if her version of what occurred was true. Her statement was contradicted in some material respects, but if there was any evidence tending to establish her theory, as we think there was, the case should have gone to the jury, and therefore the first, second and seventh prayers of the defendant were properly rejected.
Nor are we of the opinion that there was no evidence of negligence on the part of the defendant. While the defendant has the right to use the public streets for its lawful purposes, great care should be required of it for the protcetion of those passing over them. If the span-wire was properly fastened to the pole, it would require great force to break it loose, and it certainly ought to have been so fastened as not to be liable to give way by any ordinary use of the trolley. If the bumping of the trolley against the wire resulted in causing this span-wire to be torn away from the pole, it was some evidence of negligence, and if such would not be the result if the span-wire was properly fastened, it would be some evidence that it was not properly fastened. This is not a case where the wire simply fell without any known cause, but it *460 fell after the trolley "kept bumping against the wires," according to the plaintiff. So without further discussing that branch of the case, we think the third, fourth and eighth prayers of the defendant were properly rejected and the special exception to the plaintiff's first prayer properly overruled.
Nor was there any error in rejecting the fifth, tenth and fourteenth. The fifteenth was properly rejected, if for no other reason because of its form. There are many cases, it is true, where certain specific facts are relied on and if believed by the jury would be sufficient to prevent recovery; but in this case, which apparently occupied several days, to instruct the jury that if they "believe the accident happened as described by the defendant's witness, Gilbert Porter, then the verdict of the jury must be for the defendant," would be an exceedingly dangerous practice to adopt. In the first place, if the jurors, or any of them, knew Mr. Porter and believed him to be a truthful man, they would hesitate to render a verdict for the plaintiff because they might regard the prayer as requiring them to pass on his veracity, and not simply on his recollection or opportunity to see and comprehend all that occurred. It would have the effect of bringing his testimony into more prominence than that of any other witness, and moreover the jury might not remember all of his testimony.
The sixteenth prayer was also properly rejected. Even if the hysterical condition of the plaintiff was not caused by the accident, it cannot be said that there was no evidence from which the jury could find that the accident caused her any injury. If she had never gone into the hysterical condition, which she claims followed the accident; if her theory as to how the accident occurred is correct, there was certainly some injury for which she could recover. To be so affected as to fall on the street, as she would have done if sh ehad not been caught, and to remain unconscious for a considerable time, are injuries for which she could recover, if the hysterical condition had not followed.
The prayers that were granted for the defendant gave it the benefit of as much law on the subjects referred to in them *461 as it was entitled to, but for error in the rulings in the second and third exceptions the judgment must be reversed.
Judgment reversed and new trial awarded, the appellee to paythe costs, above and below.
A motion for a re-argument was made, and in disposing of the same,
Addendum
A motion for reargument has been made in this case, in the language of the brief in support of it, "chiefly on the ground that no objection was made below upon the ground that Dr. Baum was not qualified as an expert to answer the question," contained in the second bill of exceptions, "and that his qualification as an expert was therefore not open for review in this Court." As that point was not made at the oral argument or in the brief, but on the contrary the admissibility of the question was discussed, our attention was not directed to it and hence we did not refer to it in the original opinion. But without meaning to intimate that the rule which has been adopted in some jurisdictions should have the wide scope given it which is contended for by the appellee, even if it be conceded to be a general rule it cannot be applied in this case.
We recognized Dr. Baum as a medical expert in passing on several of the exceptions, and have no doubt as to his competency to testify as such, but that did not authorize him either to make conjectures or to express an opinion on a subject which required information that he confesedly did not have. The case, as tried below, depended largely upon whether the plaintiff had received an electric shock by coming in contact with a live wire, or whether her condition was the result of fright, without contact with the wire. Dr. Baum had testified that (quoting from the record): "From the history he learned of the case he concluded that the results of this case was the result of a shock," and upon being asked what kind of a shock he meant, he said: "Well, from the *462 history I elicited it was rather an electric shock or fright." He probably used the word "either" instead of "rather," which is in the record, for the next question was: "Tell the jury whether or not her condition could have been produced by fright merely without receiving an electric shock, or by the electric shock, if you say it could have been produced by either tell them which, in your judgment, was the most probable cause of it?" His reply to that was: "It is probable for either to have caused it; it is possible for an electric shock to have caused it; it is my opinion that an electric shock could have caused her condition." Then he was asked: "You have said either of them could; it is possible either of them could," and replied: "Yes, sir." Then came the question in controversy, which was: "Are you able to say as a physician, form her condition as you found it, which, in your judgment, probably caused her condition — shock from mere fright or electric shock?" The question was objected to but the objection was overruled, and he answered: "I would say that the more probable was electric shock." A motion was at once made to strike out that answer, but it was overruled.
Even from the present standpoint of the appellee, there ought not to be any serious doubt that the motion should have prevailed, and perhaps would have been granted if the learned Judge below had observed that it was not an answer to the question. Dr. Baum did not answer the question, "Are you able to say as a physician," etc., and has never said that merely as a physician he could answer that question, but he proceeded at once to give his opinion. He was not asked whether he could say as an electrical expert, or from the history of the case, or from any standpoint other than as a physician, which of the two causes probably produced her condition. Yet we are told that the appellant cannot have the benefit of its objection to the question, because it was not specially made on the ground that he was not a competent witness to testify as an expert. He was, as we have seen, admittedly a medical expert, and he was asked whether he could "say as a physician," etc. If the question had been otherwise *463 unobjectionable, it would have been difficult to have excluded it on the mere ground that he was not an expert, because he was the kind of expert the question referred to. If he had first answered the question that was asked him, in the affirmative, he could have then been further questioned as to his knowledge as a physician of the effects of an electrical current, etc., and then the defendant could, and probably would, have objected on the ground that he was not competent to testify as an expert on the subject involved in the question, for he subsequently admitted on cross-examination that he was not an electrical expert and was unable to say whether the plaintiff could suffer from an electric shock if there was not contact between the wire and the person. It would, therefore, be carrying the rule contended for further than any authorities we are aware of have gone, and certainly further than we are willing to go, to say that the question cannot now be raised because the record does not show that the objection was specially made on the ground that the witness was not competent as an expert, notwithstanding the facts above referred to.
But in addition to what we have said, we are of the opinion that there was error in allowing the question to be asked, and such error as we clearly had the right to review. We cannot read the testimony of Dr. Baum without reaching the conclusion that his answer was nothing more than a conjecture — a pure guess — and furthermore it was based on the history of the case he had received from the plaintiff, or in some way outside of the record. If the condition of the plaintiff might have been the result of either of the two causes spoken of — fright or actual contact with the wire — as he swore it might have been, it was impossible for him to know any better than the jury which of the two caused it, unless there were some marks, or something to distinguish between the two, which he did not pretend was the case. In justice to the doctor we must assume, what his testimony as recorded seems to clearly indicate, that he was influenced by the history of the case as he had gathered it, which undoubtedly was *464 not permissible. If he had been sufficiently versed in the effects of electric currents, a hypothetical question might have been so framed as to elicit an answer that would have been admissible, but to permit him to answer the question under the circumstances we have related, was simply allowing him to decide the very question that the jury had to determine, without being better qualified than they were to do so. We do not mean to say there may not be cases in which an expert can say which of two causes may be the most probable, but this is not such a case, if we are to be governed by what is in the record. Dr. Baum did not pretend to be an electrical expert but testified that he was not, but if we could assume that he was, or if we conceded that that question cannot be reviewed by us, he did not suggest that there was anything, unless it be the history of the case, which enabled him to distinguish between the two causes, either of which he said could probably have produced the condition he found the plaintiff in.
So without referring to other questions, we must overrule the motion for a re-argument.
Motion for re-argument overruled. *465