82 Wis. 613 | Wis. | 1892
The following opinion was filed May 3, 1892:
1. The assignment of error, that the verdict is contrary to the evidence,' cannot be maintained. Upon the questions of fact involved in the issue the testimony is so clear on some of the points in favor of the plaintiff, and so conflicting on others, that this court cannot interfere with the verdict. There is sufficient evidence to sustain it.
2. It is not material to inquire whether there is sufficient evidence to sustain the verdict, independent of the depositions of Martin Murphy and Thomas Mann, had they been
All the statutory requirements for taking and returning depositions must be substantially complied with. The stat
3. One of the defendant’s expert witnesses, Dr. Palmer, who had been called to visit the plaintiff in consultation three several times with his medical attendant, Dr. Borden, and who testified as a witness in his behalf on the trial in the United States court, and was examined to some extent by the defendant on that trial, now testified, in answer to the hypothetical question put by the defendant’s counsel, that in the plaintiff’s case there first existed lumbago or congestion of the lumbar and spinal muscles; that inflammation of the spinal cord and its membranes followed, and subsequent to this an extension of -that inflammatory action to portions of the brain and its membranes; that, as an opinion founded on the state of facts as presented in the hypothetical question, he should say that the plaintiff’s condition was the result of exposure and cold, and not the re-
These questions were objected to as not proper cross-examination in order to contradict the witness, and as immaterial; that the inquiries related to collateral matters, and not to any matter in issue, but the court ruled that they should be answered; and the -witness, in every instance, denied that the alleged questions and answers had been given, or denied any remembrance of the fact. On rebuttal, the plaintiff called a stenographer, present at the trial in the United States court, who testified from his minutes — against objection to each question by defendant’s counsel, that the inquiry was immaterial and irrelevant, and that no proper foundation for it had been laid — that Dr. Palmer, on that trial, testified that he thought the plaintiff had. a diseased condition of the spinal cord and meninges, one or both; that it is known by a particular scientific name; that he thought his disease or condition at that time would be accounted for more perfectly by the name of “ locomotor ataxico ” than any other name; that locomotor ataxia, of whatever type, did not as usually proceed from injury as from other causes; that he was asked, “ Doesn’t it proceed from injury just as much as from other causes?” and he answered, “No, sir; not so much as from other causes. I think it is a very unusual thing.” That the witness testified that an emotional disturbance, such as sudden fright, might be a cause of loco-motor ataxia/ that various traumatic injuries (by external force) might be the starting point of locomotor ataxia; and that instances are recorded in which the disease soon followed a fracture of the thigh, a fall upon the belly, the
The general rule is that, with respect to all questions put to a witness on cross-examination for the purpose of directly testing his credit, if the questions relate to relevant facts, the answers may be contradicted by independent evidence; if irrelevant, they cannot. Taylor, Ev. §§ 1435, 1488; 1 Greenl. Ev. § 464; 1 Whart. Ev. § 551. It is not necessary that the prior statement of the witness, in order to affect his credit, shall be expressly and strictly contradictory to the testimony as given. It is enough that lie has made statements inconsistent with his testimony on the trial. Whart. Ev. § 551, and cases cited. In Taylor, Ev. § 1445, it is laid down that “it is certainly relevant to put to a witness any question which, if answered in the affirmative, would qualify or contradict some previous part of his
Dr.-Palmer, on tbe pending trial, had given his opinion as to tbe ailment of the plaintiff; that there first existed lumbago or congestion of the lumbar and spinal muscles, subsequently followed by inflammation of the spinal cord and its membranes, and subsequent to this an.extension of that inflammatory action to portions of tbe brain and its meninges; that it was tbe result of exposure and cold and not of direct injury; and this was based, not only upon tbe facts stated in tbe hypothetical question, but upon tbe history of the case as given him by the plaintiff and by Dr. Borden when be was called in consultation, and from bis personal examination of tbe plaintiff,— all of which occurred before the trial in the United States court. It was competent for the plaintiff,.on his cross-examination, to lay the foundation for showing that in his testimony on the former trial he gave an entirely different and inconsistent opinion as to the plaintiff’s condition and its cause, and one inconsistent with the theory that it was the result of ex.-
A Upon the cross-examination of Dr. Maxon, one of the medical and surgical witnesses for the defendant, he testified in relation to cases of inflammation of the spinal cord which had occurred in his practice, and the plaintiff framed and put various questions embracing cases stated in Erickson’s work on Nervous and Spinal Diseases, and he was asked his opinion in respect to them. One of these ques
It is settled in this state and in most of the others, that medical books cannot be introduced in evidence, nor can an expert be permitted to testify as to statements contained in them (Boyle v. State, 57 Wis. 472; Kreuziger v. C. & N. W. R. Co. 73 Wis. 158); but they may be referred to on the cross-examination of a medical expert, where he has testified that books, recognized as standard authorities in the profession, lay down certain propositions or sustain certain conclusions, for the purpose of discrediting him (Ripon v. Bittel, 30 Wis. 614; Comm. v. Sturtivant, 117 Mass. 122; Pinney v. Cahill, 48 Mich. 584). When the books themselves are not admissible, an attempt to evade the rule of exclusion by conducting the cross-examination in such a way as to get the contents or statements in the books before the jury, is not admissible. Rog. Exp. Ev. § 178; Marshall v. Brown, 50 Mich. 148; People v. Millard, 53 Mich. 63, 77; Bloomington v. Shrock, 110 Ill. 219; State v. Winter, 72 Iowa, 627. We think the course pursued on the cross-examination of Dr. Maxon was erroneous, but that the error in relation to it, and the admission of other testimony so objected to, was
5. The questions asked the defendant’s witness Martin Williams, on cross-examination, were within the limits of the rule. He was a fireman on defendant’s train at the time of the collision, and had been looking out on his side of the cab for signals, and he testified that he received a signal from a man near the switch target to come back, and he described it. He communicated it .to the engineer, who started his train back with the view of going south on the westerly track, and, instead, ran back over the cross-over track, colliding with the St. Paul train on which the plaintiff was riding, because the switch had not been turned to enable the train to go south, the signal given having been a false or improper one. He testified that he had had no experience as a firemau, except for nine days, and as to the meaning of the signal he received. It was competent to-ask him, on cross-examination, whether he understood signals well enough to know what the signal was for brakes, and, on his affirmative answer, to ask him if he had not testified differently on a former trial, and also show that, while he knew the signals at the present time, he was not positive of them then.
6. There was no error in permitting Dr. Philip Fox, Dr. B. O. Reynolds, and Dr. William Fox to testify in rebuttal as to the reasons why they did not think the plaintiff’s condition was caused by exposure and cold. When exam-
7. The court was asked to instruct the jury, in substance, that if they found from the evidence any cause or causes sufficient to stand as the cause of the plaintiff’s misfortune, other than the collision, then they should find for the defendant ; and also that the damages of the plaintiff, if .entitled to recover any, must be the natural and proximate consequence of the acts of the defendant complained of; and that if a new force or power intervened, or the exposure to which the plaintiff voluntarily subjected himself by riding during the previous night in an open car, were, either or all of them, sufficient to stand as the cause of the plaintiff’s physical condition, then the collision of the trains must be considered as too remote, and they should find for the defendant. These instructions wholly ignore the real cause of the injury, and under them the jury would be obliged to find for the defendant, even though the evidence should convince them that the actual cause of the plaintiff’s condition was the collision due to the defendant’s negligence. It is plain that what was the real cause was a question, under the evidence, for the jury, and a finding for the defendant would not be necessarily proper, even though the supervening force or power referred to was sufficient, perhaps, to produce the result complained of. The court left the
8. The instruction of the court on the subject of contributory negligence was not objectionable, in view of the evidence. Contributory negligence was not imputed to the plaintiff, save in respect to his riding in the open car with his sheep to care for them, and the evidence tends to show that there was a fair and reasonable necessity for the plaintiff to ride in the stoek car. That he did so ride in it is not, as a matter of law, contributory negligence; nor does the case of Lawson v. C., St. P., M. & O. R. Co. 64 Wis. 447, maintain that it would be. The instructions of the court on this subject are not open to any just criticism. The jury were told that the burden of proof was on the defendant to show contributory negligence of the plaintiff by a preponderance of evidence, yet they were also told, in the same connection, that the plaintiff’s own evidence might be considered in determining this' question; and if contributory negligence appeared from it, or from it and other evidence, it would be sufficient to establish contributory negligence. The defendant has no ground of complaint in this respect.
9. The testimony tends strongly to show that the plaintiff will never entirely recover from his present condition, and as the jury was authorized to assess damages as a com
10. The motion to set aside the verdict was based on the ground, among others, that the damages are excessive, as well as on account of the statements made by plaintiff’s counsel in addressing the court and jury, and excepted to by the defendant. The testimony shows that the plaintiff was engaged in the stock business, and at the time of the accident was superintending his father’s and uncle’s farms; that since the accident he had not been able to attend to looking after the farms or stock business; that if he had any business to do he had to get some one to do it for him; that some years the stock business would be good, and other years it would not be so good, and the farm business would vary but very little; that the plaintiff thought he would realize about $1,500 a year, together with the farm and stock business; that he did not own a farm at the time himself; that he had a farm rented and sublet it on shares; that the first year after the'accident his wife had to be up with him from five to seven times each night, the second year from three to -five times; for over five years every time he was raised off his bed he had to have his limbs lifted off, and then to be raised up, and then when he wanted to lie down his limbs would have to be raised up; that the failure of strength to support himself and let himself down gradually was in his back; that for about five years he never laid on his back, except three or four times; that “ after five years I had to be helped to my chair. Then I was unable to move my feet. If I wanted to use my crutches, they would get me up on to them, and then, one of them holding on
The remarks made by plaintiff’s counsel in argument were not called for or justified by anything in the case, and were violative of the defendant’s right to a fair trial, to be conducted according to well-recognized rules and usages. The violation of these rules and usages is an impropriety which may greatly affect the verdict, and, if counsel indulge in such methods of argument, it is the duty of the court to see that their client shall not derive any advantage from them, and that the rights of the party who may be thus prejudiced are fully protected. The remarks complained of in this instance relate more especially to.the subject of damages, and no doubt stimulated a sympathetic and willing jury to materially increase the amount of the verdict. The tendency pf juries at the present time to give large, and indeed unusual, verdicts in actions for personal injuries brought against corporations is almost proverbial, and is well understood by all having experience in the courts,— verdicts which would not be given as against a natural person. No stimulus or encouragement
Were it not that the case has been twice tried, in both instances with the same result on the question of liability, and that the evidence is such as to justify the belief that the rights of the defendant on that question were not prejudiced by these irregularities, we would feel bound to reverse the judgment absolutely on this ground, and grant a new trial. We entertain no doubt that this improper appeal tended materially to increase the verdict. The verdict is an unusually large one, and one, we think, which would not have been given against a natural person, and the award of damages, all things considered, must be regarded as excessive. We are aware of the intrinsic difficulty of dealing with such a question upon any certain or satisfactory rule. It is entirely a pecuniary question as to what amount of compensation is to be allowed to stand as
By the Court. — Judgment is ordered accordingly.
Both parties moved for a rehearing, and both motions were denied September 2T, 1892. The following opinion was filed:
PeR Cubiam. The question whether interest shall be allowed in the entry of judgment, if the plaintiff elects to remit $5,000 from the verdict, has been presented on appellant’s motion for rehearing, and, in order to prevent any misapprehension, we think it proper to say that, in that event, judgment will be entered as on a verdict for $20,000, and the plaintiff will be entitled to tax, as costs, interest on that sum from the date of the original verdict, pursuant to the statute. Sec. 2922, E. S.