*1 UNITED EYS. 00. vs. COEBIN. Syllabus.
in оur view the case before we cannot sustain the consti us, tutional of objections appellants.
Decree with costs to the appel- affirmed lees above and below.
THE UNITED RAILWAYS AND ELECTRIC COM vs. ROSE CORBIN.
PANY Medical Plain- Experts—Evidence as to Cause Opinion of of Mental Per- Injury—Opinion Injured as to Condition
tiff’s of Not Waived son—Exception Testimony by Cross-Examina- tion Falling Trolley Witness—Shoclc of Plaintiff from inWire Street—Sufficiency Evidence—Instructions—Spe- Witness Not Neces- Exception Competency Expert cial sary. at issue is whether the plaintiff’s injury
When of contact with wire with charged electricity result frightened it was the result a flash having by whether testified she wire, having from such plaintiff’s physician a shock or suffering hysteria, produced by injury disease, witness, testify a medical qualified and not a medical expert acquainted an electrical or as expert, currents, cannot be allowed to testify effects of electric was more in his the condition opinion shock than the result of a the result of an electric fright. mere shock from nervous allowed that the ought testify A witness not to be medical to have been plaintiff, alleged nervous condition of the is such that it would not be negligence, defendant’s on plain- since his based opinion, entirely for her to marry, more or condition, must needs be less specu- nervous tiff’s lative. who as a experience practitioner, of some years’
A physician in mental who attended diseases, an alienist or specialist is not UNITED EYS. 00. vs. 00EBIE. M3 Syllabus. Aid. ]
plaintiff when she received the aft- injury complained erwards, is entitled to as to his testify the ultimate *2 effect of the mind. her injury upon An exception taken to the admission of certain evidence when
offered is not waived afterwards cross-ex- by exceptant’s the witness аs such evidence. aming A physician who testifies he had had electrical shocks that two
himself shocks, and had had throe from such patients suffering be asked in his the condition of the may whether her, was such as plaintiff, when examined have been an electric shock. produced by A effects witness who is as an as to the qualified only on the human as to whether electricity body testify cannot did can receive an electric shock from a wire which person clothing. not touch his person
Plaintiff’s in the street on walking evidence was that while
which a car ran, defendant’s electric railway trolley came off, against wires stretched kept bumping span wire; across the that up thereby street hold trolley wire was detached from its fell span fastening pole, wire, charged electricity; over the thus trolley becoming that there was a flash from the wire in plaintiff’s fаce, that she became unconscious and would have fallen but for that afterwards certain help; plaintiff developed symptoms plaintiff might It was shown that have received injury. which would through clothing electric shock not have left a mark on her Defendant’s evidence was to the effect body. Held, that the plaintiff. that the wire did not touch to show that either the person sufficient legally wire, touched and to take the case to by clothing the jury. if the wire
Held, bumping trolley against further that to be torn wire caused the latter that is span pole, that it was fastened. properly some evidence Held,, condition of the further, the hysterical the accident there is evidence in the case by
was not were caused it for which she is entitled injuries that other recover. for an damages alleged recover injury In an action to UjSTITED EYS. 00. vs. COEBIH. Statement the Case.
beеn caused by defendant’s is erroneous negligence, prayer instructs the they believe accident hap- pened as described then witness, P., G. the verdict must be the defendant.
Upon Motion Re-Argument. When objection made to a to a medical propounded
witness which is overruled and the answered, admissibility of the evidence be determined may upon appeal consideration the character of only the evi- dence, ground also upon the witness was not shown to as an qualified expert to answer al- the'question, no though special objection made at the trial that he was *3 competent testify expert. 12th, Decided 1909. January 23rd, motion March 1909. Opinion re-argument, from the Court Common Appeal Pleas Baltimore C. where there was a City (Harlan, on ver- judgment J.), dict for the $5,000. 1st Court
Plaintiff’s, instructs the Prayer.—The jury it was the of the defendánt duty exercise care, rеasonable in view the to be from a danger reasonably apprehended do in so, failure to the construction and maintenance of its overhead wires and in in operation cars, of its order to avoid persons lawfully streets; injuring using and public if the find that one of the defendant’s overhead wires jury broke fell because of and the failure of the defendant or its servant to exercise such reasonable care and such wire and that it in came contact with charged electricity, her an plaintiff’s person and clothing gave shock rendered her unconscious and caused her serious and that at the time the plaintiff injury, lawfully using street of Baltimore and was public reasonable exercising UNITED BYS. CO. vs. CORBIN'. Statement of the Case.
Md.] care, then the verdict of the jury should be for the plaintiff. ( Granted.) are Prayer.—The instructed that jury Jfth
Defendant’s there is no evidence in this сase sufficient to show legally that the wire mentioned the testimony owned and under the control of the defendant and did, by through negli- and gence carelessness of the defendant’s agents servants, fall down way at plaintiff: Howard and Lexing- ton Streets, therefore under the the verdict of pleadings must be for jury the defendant. (Refused.) 5th Prayer.—That uncontradicted evi-
Defendant’s dence shows that the direct- guilty neglig’ence ly contributing accident happening mentioned testimony, therefore the verdict of the must be jury for the defendant. (Refused.) 6th are Prayer.—The instructed that if jury
Defendant’s they believe from the evidence that the plaintiff could avoided 1he the accident happening of use of ordinary care and caution on her then the part, verdict of the jury must be for the defendant. (Granted.) 7th Prayer.—The are instructed that
Defendant’s there is no this case sufficient legally to show that the wire which fell described the plaintiff’s testimony, at the corner of Howard and Streets, Lexington touched the person at clothing all, find that *4 the plaintiff sustained no physical from said injury wire, merely encountered peril, and fright consequent mental then she is not suffering, entitled to and recover, their verdict must be for the defendant. (Refused.) 8th the Prayer.—That uncontradicted evi-
Defendant’s dence shows that the defendant’s agents servants were of act of in guilty either the negligence, operation of car the mentioned management the testimony, in the construction, maintenance operation of the overhead wires at the mentioned in the point testimony, and therefore the verdict of the must be the jury defendant. (Re- fused.) UNITED RYS. CO. vs. CORBIN. of
Statement Case. 9th are instructed that the Prayer.—The jury Defendants burden of proof upon to show that the inju- ries complained were caused the want of by care ordinary on the part and servants of the defendant agents com- and unless pany, shall jury be satisfied weight the evidence that the injuries complained were caused by the want of care on the ordinary part defendant’s agents, not entitled to recover and the verdict of the must be for the jury defendant. (Granted.) 10th burden of Prayer.—The establishing by Defendant’s a preponderance of proof, satisfactory state jury, of facts in the rests alleged declaration, plaintiff; in this case should be such as to leave the minds of the in a state of even balance to the' truth of the facts the verdict must he alleged declaration, the defendant. (Refused.) 11th even shall Prayer.—That, though they
Defendant’s find from the evidence that there was a defect the trolley or the pole overhead wires the defendant at the comрany point accident, and shall further find that the they was caused such still injury solely defect, their verdict must be for the defendant, unless shall find from the they evidence that the defendant could have discovered the defect aby reasonable and examination and that the defend- ant failed to make such examination and that thereby injury was caused to the plaintiff. Granted.) 12th are instructed Prayer.—The
Defendant’s the law does not make the defendant an insurer of company on the nor does it safety street, pedestrians require contrivance company adopt every possible to their looking that human can and that if safety find ingenuity suggest, they had, from the evidence that the defendant reference to both maintenance of wires erection and equipment used reasonable every mentiond the testimony, safeguard admitted, which the nature of its business thеn it has per- formed its whole and under the premises, duty plead *5 EYS. vs. OOEBIX. EXITED CO.
Statement the Case. must this case the verdict be for the defendant. ings (Granted.) the 16th the from believe Prayer.—If jury
Defendant's that the condition described the testimony hysterical by plain- tiff the in this and witnesses case not caused the accident mentioned the testimony, other troubles from which the plaintiff suffering prior the time the accident, then there no from can find that said jury accident caused any injury and the plaintiff, verdict must be the defend- jury ant. (Refused.) 17th are Prayer.—The jury instructed
Defendant's believe from the in this case that fall- jury wire in the ing mentioned evidence did not strike the person of the shall clothing and plaintiff, further find from the evidence that the not have plaintiff could received electric shock, unless the wire said did come with her contact per- son or shall and further find clothing, the plaintiff no received injuriеs whatsoever the result of occa- fright sioned by in the then sparks mentioned testimony, is not entitled to recover plaintiff as the con- any damages of the verdict sequence fright, must for the defendant. (Granted.) 20th Prayer.—If believe that
Defendant’s received no plaintiff from bodily contact with the injuries electric current broken wire mentioned emanating evidence, flash and noise such produced by current so from the broken wire would not have escaping affected person nerv- injuriously ordinary physical ous at the strength position time of the then accident, entitled to recover. (Granted.)
(cid:127) The cause before argued J., O. Boyd, Pearce, SomiucicER, Burke, Wortiiikgtok, JJ. C. France and J.
Joseph Pembroke Thom whom was (with Albert R. Stuart on the brief), appellant. *6 00. vs. CORBIN. UNITED EYS.
Opinion of the Court. on the M. whom was Golden (with S. S. Field Philip the appellee. brief), of the Court. J., O. delivered thе
Boyd, of in favor is from a rendered This an appeal judgment to have the the appellant injuries alleged appellee against Balti- Street in the of her on Howard City been sustained by The narr. of the defendant. the more, through negligence and and carelessness through negligence alleges by one with wires, electricity, of defendant of its charged Street, from “fell in said on said Howard plaintiff’s way down came in with and and contact position its elevated and was fall- shock, her an electric while it plaintiff gave .and towards said said wire was plaintiff discharging great ing wire, as a result of the said and electricity, falling sparks of said de- which was caused aforesaid, negligence by servants, placed the said plaintiff its and fendant, agents herself and in efforts extricate in a position, perilous and to out of path from said dangerous position, get seriоusly electric light wire, plaintiff said and falling to her nervous system and and damaged permanently injured otherwise,” and etc. The she was about her injured body and span- into the street what called wire which dropped to hold the wire and across the street up wire was stretched out It was some pulled on which the runs. trolley way the trol- holds it to fell over pole which the ring The with electricity. wire, charged ley thereby becoming in contact with wire that coming contended of the defendant while the theory the injuries, were the result they far sustained any injuries that so as she from wire. The contact fright left she was the effect that on the part at condition, unconscious nervous became serious very convulsions, Her testi- physicians suffered etc. times, from “traumatic hysteria”— she was fied that suffering by- them to be hysteria produced was described by disease. from that caused as distinguished by shоck injury, M 9 RTS. vs. CORBIN. UNITED CO. of the Court on taken to rulings were exceptions Ten on the embraces the the eleventh evidence, rulings offered Court the two prayers granted prayers. twelfth, thirteenth, sixth, eleventh, and the
plaintiff, ninth, twentieth offered nineteenth and seventeenth, eighteenth, defendant, fifth, third, fourth, its -first, second, rejected sixteenth, fifteenth and seventh, tenth, fourteenth, eighth, first. its exception and overruled special *7 The can he considered exceptions second and third first, Dr. had that from the history Baum testified together. of this had that “the results the case he received he concluded He was “When case were the results of a shock.” then asked: it examination of the diagnosed case you say your you condition shock as traumatic or nervous hysteria produced by ?” a replied: shock do mean To which he you what kind rather electric I an “Well from the elicited history in or the word “rather” Perhaps shock record fright.” to “either.” He was then asked: “Tell the intended he whether or not her condition could have been produced an without electric or merely receiving’ shock, by fright it could shock, say produced by the electric have you in most was the either; which, tell them your judgment, of it.” That was objected to, cause probable but witness answered: objection, the Court overruled is it; “It either to probable possible it; have c it is opinion an electric shock to aused an my have caused her condition.” That rul- electric shock would first exception. presented by ing His then either “You have said testimony proceeded: of them A. sir. Yes, it is either could? possible them could; Q. a from her able to condition as Are you say physician, it, caused her your judgment, found which, you from mere or shock?” condition—shock fright to, hut, ovеr- objected objection latter being lie “I would that the more ruled, probable answered: That shock.” constituted the second exception; was electric answer, after defendant made immediately 29 109 von.
450 UNITED EYS. CO. CORBIN. vs.
motion to it out, strike refused, the Court and that is embraced ruling third bill of It was said exceptions. State, v. 64 Williams an 384, Md. expert “may give as to the nature opinion and effect of an but only injury, also the or manner instrument which it was inflicted.” In 17 Gyc., 234, many illustrations great are what given are medical experts them permitted testify, amongst “what he was the cause of certain judge symptoms under circumstances; which several given among possible causes was the probable one.” But while approximate has been latitude allowed the examination of great medical should not they permitted their experts, express opin- ions because are merely they physicians, must be experts confined about which subjects are, or are presumed they be, If a not know acquainted. does more about the effect cause than other jurors given people do, no can be of service in enabling reach This conclusion. Court said in v. Dashiell Griffith, 377: “It is an Md. practice unsafe the admission of to allow witnesses to unless the speak experts *8 Court well satisfied that the they possess requisite qualifica- ; not tions this but such account, alone the effect of testi- is most difficult to estimate, from the fact that undue mony not attaches to it and an importance to it infrequently gives influence the minds of which not it is jury fairly or A entitled.” reasonably be intelli- may very well man, and be in his gent may versed very profession, does him not make competent speak as expert an ishe not with. things specially acquainted this no In there was case evidence the was plaintiff efforts to injured extricate herself from a perilous latter position, part the of the above alleged quotation from the and narr., the raised by the pleadings was whether the wire “came with contact the her an shock.” plaintiff electric one of the Indeed, gave afterwards prayers instructed granted they jury believed received no contact bodily from injury UNITED EYS. vs. CORBIN. 00. wire,
with broken the electric current from the emanating but that her due to condition were bodily present injury or nervous the flash or noise fright shock, produced caused by said not electric then was entitled current, recover, and own prayer required find that the wire or cloth- came contact with her peerson her an shock. The submitted to ing gave electric case Dr. Baum asked practically same question bill the second he was asked which excеptions, excepting if it the two shocks her condition. Now be that it is conceded to ask medical of two one, causes possible probable approximate must shown to have such surely knowledge effects of both as to be able to This wit- them. speak intelligently ness had not not himself as an electrical ex- only qualified an or as medical pert, one the effects acquainted but his electric cross-examination shows that he was current, “Q. not so kind We will it: What speak. qualified quote of electric shock she would did touch her get the wire ? A. from person wire shock fright; Apparently it is that it was shock; whether there my opinion electric I was contact was the think had some better let question; you that,” electrical expert explain Mr. Field: “You are Q. an A. electrical sir. You answer this was expert? No, I not know shock; electric did whether meаnt a shock you current or fright produced by electricity? A. I am unable to determine what the amount of the shock Q. If received of the sort. anything shows that was no there contact between the and the wire still this from an person you party suffering A. I am electric shock? unable to answer that.” *9 in It is true that evidence was not the record when the these but it made, on were exceptions emphasizes rulings that witness is an to as importance seeing qualified speak his It shows that before admitting testimony. the witness was not founded by opinion expressed any spe- him as an which The expert. cial knowledge qualified theory UNITED RYS. 00. va. CORBIN. of the defense was that there was no contact between the wire the witness said he was unable to answer person, yet last above He said that question already had quoted. condition have been caused with- might by fright out an receiving shock, elеctric an electric shock, ishe not an electric has not expert, and shown that although he knew what effect on the an body electric current would have, if in the wire did not come contact with the person, “I to would that the permitted more testify: say proba- ble was the electric The answer shock.” question to first bill of is not so in the exceptions objectionable for went the extent of second, only to that it was saying that either or an shock probable electric have' fright condition, caused her answer to the question he in second bill effect said that an exceptions shock her caused condition. assumed Again, question that either the shock mere an electric shock fright and was for that reason it, as the de- objectionable, fendant not did concede that it was caused but on by either, offered evidence show other contrary to causes tending which at for least, were part, responsible condition. The the first was not free exception altogether from that but the answer could not have objection, done harm, we it cannot be particular denied suppose it was electric shock to caused the condi- possible tion but there was error in plaintiff, reversible allow- the second bill of to be an- ing exceptions out not the answer when the swered, motion striking was made. The answer was really responsive ques- as the witness did not whether he able to tion, say as a caused her bnt he condition, physician proceeded give opinion. fourth
We do understand the be exception pressed. fifth The allowing attending answer the “Whether or not a question, young in a condition in which woman in her condition is her to marry.” ground objection urged *10 453 UNITED RYS. vs. CO. CORBIN. Opinion of the Court.
is that the referred did not statе condition was what to, but on he cross-examination he was what condition asked did refer to, “I to her nervous replied: referred simply the condition of her The condition,- nervous system.” appel- lant was not therefore reason of the re- injured condition to not in ferred more stated being explicitly question. But Dr. Wil- regardless that, of similar was asked answer went son, before without objec- tion. think While we do not there reversible error in of he Coirrt, such not to ruling ought admitted, as such be must more or less opinions physicians when ai-e speculative conjectural, not misleading, they based the nervous entirely upon condition of parties.
The seventh was to the exception asked following question Dr. Baum: “Will tell you kindly gentlemen will what- be the ultimate effect the condition from which as have her suffering, you testified, upon mind?” which he answered: is that it will “My opinion and that progress shе will her That eventually lose mind.” is objected to Dr. because Baum had no laid foundation an alienist to such In give answer to that may testimony. said the first that he had place been a practicing physi cian since 1895, is a of the Baltimore Medical Col graduate and was lege, connected- General Maryland Hospital for six years. He attended the when she received of for four five injuries complained was then called days; on May 10th, saw her then and the next again day, her condition was such in Dr. Wilson con called sultation. He her advised so to avoid go country and did not see excitement, her until few before again days the trial. There seem to be no doubt under these cir cumstances he was as to express opinion competent Davis, mental v. condition under the decisions Crockett 81 Collins, 94 134, Md. Jones Md. 403.
It cannot he that there he cases which the doubted may have undue opinions may such physicians subjects will physician weight. family juror UNITED RTS. 00. CORBIN. vs. him other have more influence on than of some naturally same whom he does not or does not know, trial in, confidence and hence Courts to be careful ought *11 that a had see so called to has either physician upon testify a his to form correct from own opinion opportunity in- of whose mental condition is knowledge person being in it is all the facts the case re- into, or that based on quired satis- on the which facts the Court should be flecting subject, are sufficient to enable him to form an opinion fied intelligent its from. is for the but The weight testimony jury, of is for the Court determine. But the law to admissibility an alienist— State does not to'be require physician this in a in that line. If such were the sense that he is specialist law it often of such aid as an hon- deprive in est could them and intelligent physician give reaching of conclusion. It would add expense proper greatly those limited means of such and would often trials, deprive but should be per- medical no one testimony, specialist Davis, v. in on mitted to As was said Crockett testify. page n tes- the reason can 149 of 81 Md., why giving first without testator, as to the mental condition tify is on which his facts and circumstnaces stating to become, “That is he is presumed based: because familiar with the and experience, symptoms special study Court to assist the mental and therefore diseases, qualified an is a correct conclusion.” There ex- and jury reaching Evidence, in 1 cellent Wigmore discussion subject sect. 68Y. form this objectionable,
Nor we find the do had testified she was condition the witness it was based on the exami- her, his own attendance as found from in, Dr. Wilson. There is no himself and with nations of her by if there had been it would shown that exсeption, error this Court could see reversible error (unless not have been have been to the defendant, or injury there was may in this the same not case), testimony does appear Dr. from Wilson. In without objection regard admitted DHITED EYS. CO. vs. COEBIH.
to the latter statement we deem it affecting a matter of that if practice, counsel wants the benefit of such it would either exception be well to to the ad always object of similar missibility have it understood that testimony is admitted When subject has exception. admitted and an noted, counsel deem it neces exception may sary cross-examine the witness on the is subject, a cross-examination he simply ought deprived the record shows he there exception, provided does intend to waive it, and that it is be inferred when strict ought ly cross-examination. There some confusion perhaps the cases on this but the rule not to be carried subject, ought to the extent of that he placing attorney position must either waive his exception permit chief to stand without cross-examination. It in 2 said *12 Pl. and Pr. Ency. 523, that cannot of the party complain action of the trial Court “that illegal incompetent was admitted which was called out his own counsel on by cross-examination of his but when an opponent’s witness, exception taken to the duly admission of evidence it illegal is not waived the witness by cross-examining respect it.” We fhink that the correct rule, and any statement of this opinions Court to the must be modified contrary to that extent.
The seventh was taken exception Court ruling in Dr. Wilson to permitting answer the “Will question: you tell his Honor and whether gentlemen in in the condition your judgment found Miss you Corbin on 11th was such May might naturally prob- have been ably electric shock?” Dr. Wilson produced by had testified that he had two electric shocks himself, and had had three from electric shocks. It is true patients suffering that the latter were shocks from and not from elec- lightning wires, tric think but we that such as he had experience had, in taken connection with his medical was sufficient knowledge, the Court him to answer the justify permitting ques- in it which did not have we tion, have objection referred CO. vs. OOEBIN. UNITED EYS. 456 whether Baum, to above in those asked Dr. but was merely the condition of the “was such that naturally might have been an electric shock.” It produced and by Co., v. 89 Wis. 371, was held in Bloch Ry. Milwaukee St. that a his might could give injuries been with- wire with elec have contact by charged that there was as the theory tricity, inform it was found, such if the so contact, have been so them her condition was such whether been there had caused.- The did not assume question State, v. an electric shock. In Davis Md. 15, 38 “whether witness, to be askеd a medical permitted as fatal the wound fracture described by nature of such wound and fracture could have physician, examining inflicted the accidental been, or were been, likely in which sink, into a condition deceased falling witnesses.” See also Seymour's it had described . Case, and authorities above citéd Md. 432, ninth The The exception pressed. eighth á witness taken to the action of Court stopping ' was objectionable'because 'answer to answer question. ;it on rate later on he testified was mere at any argument, that it for the wire to have the same was impossible subject, when struck which was he was her, answering interrupted. Dr.
We find no tenth exception. error ruling to, an electrical himself as the effect' of Bevan did qualify *13 he was to human arid allowed testify current the body, the whether, as but the was that, assuming to fully question that wire not touch the facts the did stаted, others, amongst an she have received could plaintiff, person clothing to that, electric current from the wire. As the doctor than wit- no more other speak any intelligent to competent be an ex- ness. He to on profess electricity, did on human He in as to its effect the substance body. cepting of his but there had so stated in a part testimony, subsequent RYS. vs. CORBIE. 00. UNITED Opinion Hie Court. ob- to that when the was,
been no he attempt prove to was asked. jected the which embraces
This us to the last exception, brings pray- on The the second seventh rulings prayers. first, to the plain- the special exception ers of the defendant and They first can be considered present tiff’s prayer together. to the there sufficient evidence whether was legally difference between the recover. The only entitle plaintiff latter refers to the pleаdings, the first and second is that the in- not. seventh asked the Court while first does The that no evidence sufficient struct there was legally cloth- touched the person show that wire plaintiff’s first all, at and the ing prayer exception on that the came that there was no evidence wire ground shock, her contact with gave plaintiff and that there on part was no defend- negligence ant.
There was some evidence to show certainly tending shock of some whether or not kind, received plaintiff of her entirely condition, cause described of the defendant’s doctors. There was also evidence some witnesses that the wire touched the without touch- clothing have shocked if the cloth- would ing skin, pláintiff skin, was in contact with the and one the defendant’s ing her “If struck question, trolley answer experts, re- left mark it have on her clothing any clothing?” it would,” I can’t he did “Ho, sir; say although рlied: a mark. skin it would leave The it struck the that was of the wire when he spoke shows speaking context that the shown, therefore, It was the “trolley.” an electric shock her received through clothing mark. testified that she without leaving north side of Street, on the Lexington west going saw on Howard Street she car the oppo- she reached when use own track, on the west and, south side, site going “I car record, kept and the going, words, given came off and kept trolley and the started, humping against *14 UNITED RYS. CO. vs. CORBIN. 458 I did wires; attention pay any on, that and walked and the car had far gone me it enough pass behind when I reached the track. When I was about to just reach the track the wire came down into face; wire came my down, and a there was such flash in front of right my eyes— I took it I so. run, remember I trying don’t know what happened after that.” she that “the Again said flash was like flash of just fire; greаt like lightning, only it was much than a larger flash, lightning witness’s covering whole face.” She could not whether the wire touched her flesh, but person her testimony correct as to the flash there is every reason to believe that it at least touched for the shows clothing, that there is no flash unless the wire comes contact A something. police- man testified that “he saw the wire came that it down; was still when would strike hanging; it would anything throw when it flash; loose it did not throw hanging Several any.” witnesses that she testified was about the east rail of the north-bound track on Howard Street when the came; flash she turned and about to fall near the curb she when wire about fifteen caught. suspended feet above track, and when it broke from the pole, trolley wire, over hung readily backwards swing and forwards. One of the defendant’s witnesses said the wire moved “three or four feet around” it fell, after and another оf them that the said was near the and about track, time she threw her hands saw a flash at the up back about at the at the back car—“right trolley pole car.” Mr. Thiel testified that “he saw flash from the trolley wire, and then the car started and went about pole trolley curb; six it did not cross the there was feet; noise, slight but not car fire; more then the moved off again, off the time witness some when the car moved second saw back about the same as if car, flashes about just right or three towards the west matches, about two you parlor light rail street.” towards the west side He rail, “it was be- afterwards, saw the also said he wire lying UNITED EYS. CO. vs. CORBET. *15 Opinion Court.
Hd.J tween the two side tracks on the west about west side, just of the it track south-bound track where car; lying the car had He said he did not see the plaintiff down.” gone curb, until she was to the that she seemed faint and abottt some her. gentleman caught the evidence of some of the witnesses contra-
So, although if her is true saw the her, dicted statement she “bump- trolley and then on and wire came wires,” walked ing against into her the car far for her down face when had gone enough behind turned toward the curb, it. She back pass fallen if and her, have someone had was uncon- caught and scious for considerable time. .While others who jurors electrical do not know deal about the are not experts great effects of do know some of them. electricity, they Anyone from the that she must conclude have come with a wire have the effects contact live produced proven, before, as if never nervous trouble swore she had had she any if her version of what occurred was true. not, she had and some material Her statement was contradicted in respects, if to establish her evidence any tеnding theory, there there to the we think the case should and was, gone jury, and therefore the second seventh the defend- first, prayers ant were properly rejected. there was no
Hor are we evidence on of the defendant. While the defend- the part negligence its streets for lawful public pur- ant has the to use the right for the be of it care should required protceti poses, great If over them. the span-wire properly of those passing force to it to the it would break require fastened pole, great loose, it to have been so fastened as not to and ought certainly If use any ordinary liable give way by trolley. wire in caus- resulted trolley against bumping be torn from the was some away pole, this span-wire ing not be result such would negligence, it would be evi- fastened, some if the span-wire properly This is fastened. not a case that was nоt properly dence known fell without but it cause, any where the wire simply n UNITED BYS. CO. vs. COEBIN.
Opinion of tlie Court. fell after the trolley “kept bumping against wires,” ac- to the cording plaintiff. without further So discussing branch of case, we think the third, fourth and eighth prayers defendant were properly rejected the spe- cial exception first prayer properly overruled.
Nor was there error fifth, tenth rejecting fourteenth. The fifteenth was if for properly rejected, no other reason because of its form. There are cases, it is many true, where certain facts are specific relied on believed by the would be sufficient to prevent but in recovery; *16 case,'which this several apparently occupied to days, instruct if the jury “believe the they accident as de- happened scribed the defendant’s witness, Gilbert Porter, then the verdict of the must be for jury the defendаnt,”' would exceedingly practice to In dangerous the first if adopt. place, the jurors, any. them, knew Mr. Porter and believed him to be a truthful man, to they hesitate render a ver- dict for the because they might regard prayer them to on his requiring pass and not veracity, on his simply recollection or to see and opportunity all that comprehend occurred. It .would have effect of his bringing into more than prominence that of other witness, and moreover the not remember all of his testimony.
The sixteenth was prayer also properly rejected. Even if condition hysterical was not caused by the accident,' it' cannot be said that there was no evidence from which the could find that the accident caused her. If she any injury. had never into gone con- hysterical the. dition, which she claims followed the accident; her theory as to how the acсident occurred is correct, there was certainly some for which she injury could recover. To be so affected as to fall on the as she street, would have done if sh ehad remain caught, unconscious for a considerable are time, for which she could injuries recover, the hyster- ical condition had not followed. ' that were prayers granted defendant it gave the'benefit’of much law on the subjects referred to them CORBIE. UNITED KYS. CO. vs.
Opinion Court. as it was but for error tbe sec- to, entitled rulings must be reversed. ond and third exceptions judgment awarded, reversed and new trial Judgment costs, above and appellee pay below. ip
A motion for a made, disposing re-argument of the same, of the Court. delivered the
Boyd, O. J., A has in this case, motion for been made reargument of the brief in on the support it, language “chiefly that no below ground objection made ground thаt Dr. Baum was not as an answer qualified expert bill “and contained second question,” exceptions, as an therefore not qualification open review in this Court.” As that was not at the point made oral or in the but on the argument brief, the admis- contrary our sibility discussed, attention was directed to we did not hence refer the original opinion. But without rule meaning intimate which has been in some adopted jurisdictions should *17 the wide it which scope given contended appel- if; even lee, it be conceded to abe general rule cannot in this case. applied
We Dr. Baum as a medical recognized passing' several have his exceptions, and no doubt as to such, as competency that did not authorize him testify either to make or to an express on á conjectures opinion sub- information which that ject he confesedlv did not required have. сase, tried below, depended largely had an whether received electric shock by coming her wire, contact with live or whether condition was result of without contact with the wire. Dr. fright, Baum from the had testified (quoting “From the record): he of the learned case he concluded that history the results result a shock,” of this case was the and upon asked being kind of shock he he said: meant, what from the “Well, UNITED RYS. 00. vs. CORBIN.
Opinion of the Court. I history elicited it was rather ail electric shock or fright.” He used the word “either” instead of probably “rather,” which is in the for the record, next was: “Tell the whether or not her condition could have been produced by without fright merely or shock, receiving (cid:127)electric shock, it could have been you say either produced by tell them which, in was the your judgment, most probable ?” cause of it His to that was: “It reply probable n eitherto it; have cаused it is for an possible electric shock it is it; an electric shock my could have caused her condition.” Then was asked: “You have said either of them could; it is either possible of them could,” .and sir.” replied: “Yes, Then came con- the question was: which “Are troversy, able to as a you physician, say form her condition as found you it, which, your judgment, caused her condition—shock from mere fright electric shock?” The to but the objected objec- tion was and he overruled, answered: “I would that the say more probable electric shock.” A motion was at once made to answer, strike out but was overruled.
Even from the there present standpoint appellee, n ought not to be serious doubt that the any motion should have would have prevailed, the learned perhaps granted n Judge below had observed that it was not an answer to n question. Dr. Baum did not аnswer “Are the question, you ” . n ableto as a say physician etc., and has never said that merely he could answer that but he question, at once to proceeded He was asked opinion. give whether he as an could electrical or from the expert, of’the history case, other than as standpoint two causes physician, probably produced n condition. Yet we are told that the cannot have appellant the benefit of its because it objection was not question, *18 n specially made on the that he was not a ground wit- competent ness to as an was, He as we have testify expert. admit- seen, a medical and he was asked whether tedly expert, he could If etc. '“say physician,” the had question been 'otherwise RTS. CO. CORBIN.
UNITED vs.
Opinion the Court. it would have difficult to unobjectionable, been have excluded it on the that an he mere was not expert, he ground because was the hind of the If referred to. he had expert question first answered the him, was ashed question affirm- ative, could his he have then further as to questioned as a of the knowledge effects of electrical cur- rent, etc., and then could, would, the defendant have on the objected he was not to competent ground as an testify on expert subject involved the question, for he admitted cross-examination that he subsequently was not an electrical to was unable say Whether the plaintiff could suffer from an electric shock there was not contact between the wire and It would, there- person. he fore, carrying rule contended than any further authorities we are aware of have further gone, certainly than we are to to that the cannot willing go, now he raised the record because does not show thаt- the ob- made on the jection that the specially witness ground anas competent expert, the facts above notwithstanding to. referred
Bnt in addition to what we we said, have are opin- ion that there was error asked, allowing such error we had to review. We clearly the right cannot read the of Dr. Baum without testimony reaching conclusion his answer was more than a con- nothing jecture—a puro furthermore it based on the guess—and he had received from the history case plaintiff, outside If some record. condition of the way have result been the of the two causes plaintiff might either or actual contact with wire—as he spoken of—fright swore it for him know been, was impossible than better which of the two it, unless marks, there were some between something distinguish which he two, did was the case. In pretend justice doctor must assume, we what as recorded seems that he was influenced his- clearly indicate, by of the case as he had tory gathered it, undoubtedly *19 UNITED KYS. CO. vs. COKBIN.
Opinion the Court. If he versed sufficiently had been permissible. have currents, effects hypothetical question might been framed an answer that would so as to elicit have under him answer but to to admissible, permit him related, the circumstances simply allowing we determine, had to that decide the very question We so. than were do without better being qualified they in which expert not be cases do not there say may mean be the most probable, causes may can two inis what such we are be case, governed this is not be an electrical did not pretend Dr. record. Baum assume but we could not, that he was but testified cannot or if we conceded was, he that there us, anything, did suggest reviewed he him to dis- which enabled case, it be the history unless causes, said of which he two either tinguish between found condition have produced could probably in. we must overrule to other questions, So without referring the motion re-argument. overruled.
Motion re-argument