Gillman v. Media, Middletown, Aston & Chester Electric Railway Co.

Evidence — Witnesses—Expert—Hypothetical question. 1. Where the facts are admitted or proved by evidence which js not conflicting, an expert may be interrogated as to his opinion upon such facts. As, however, it is the province of the jury to determine the facts, an expert cannot be asked his opinion upon the whole evidence in the case where that is conflicting. But a party may state specifically the particular facts he believes to be shown by evidence or such facts as the jury would be warranted in finding from the evidence, and ask the opinion of the expert on such facts, assuming them to be true. The other side may likewise put a hypothetical question based upon such facts as he alleges are shown by the evidence or the jury would be justified.in finding from the evidence. Neither side is re- ■ quired in putting the hypothetical question to include therein any other facts than those which he may reasonably deem established by the evidence. 2. Where a hypothetical question states all of the facts disclosed by the evidence in the case, from the standpoint of the party interrogating the witness, the question states all that is required. Practice — Trial—Continuance cause — Absence of witness — Discretion of court. 3. It is not an abuse of discretion amounting to reversible error for a trial judge to refuse to continue a case because of the absence of a witness where there is no proof that the witness had been subpoenaed, where there is no offer to show what he would testify to, and where it also appears that the testimony of the witness would have been simply cumulative.

Appeal, No. 95, Jan. T., 1908, by defendant, from judgment C. P. Delaware Co., Jan. T., 1906, No. 185, on verdict for plaintiff in case of Bertha Gill-man v. Media, Middletown, Aston & Chester Electric Railway Company. Trespass to recover damages for personal injuries. Before Johnson, P. J. At the trial when Dr. Paxson was on the stand he was asked the following question: “Q. If Bertha Gillman, prior to June 9, 1906, was in good physical health, and on that day received an injury on a trolley car which fractured her coccyx, and has since that time been operated upon for that fracture, and is in poor physical health now, and has been since that time, might, in your judgment, that injury cause her present poor physical health? ” Mr. Howell: I object to that question. I presume it is intended to be a hypothetical question. It does not state all of the facts of the case, and I think it is improper. The Court: I do not think a hypothetical question must necessarily state all of the conditions. There may be thousands of conditions not stated. Mr. Howell: Yes, sir. That is the point, and to ask whether, applying it to this woman, a certain thing itself were anything else, when there are other complications admitted, it permits the drawing of a wrong inference. The Court: What other complications? Mr. Howell: Dysmenorrhea, painful menstruation, previous history of an operation and the removal of ovaries. The Court: State your proposition again. Question read as follows: “Q. If Bertha Gillman, prior to June 9, 1906, was in good physical health, and on that day received an injury on a trolley car which fractured her coccyx, and has since that time been operated upon for that fracture, and is in poor physical health now, and has been since that time, might, in your judgment, that injury cause her present poor physical health? A. Yes, sir.” The Court: I think you had better add to that, there being no other physical conditions excepting those mentioned, because that excludes everything else, you see. Mr. Fronefield: I have no objection to that. The Court: Add that to it, and I will let it be answered. Mr. Howell: Your honor understands that is the very point of my objection? The Court: I say, there being no other physical conditions. Mr. Howell: The testimony is there were others. The Court: I do not know whether there are or not. You can cross-examine on that. The objection is overruled. Exception. [1] Mr. Fronefield: “Q. Will you please answer the question? A. My answer is that I only examined the woman one day, and never have seen her since except in the courtroom, and what I found at that time I believe to be the cause of all her trouble then. As to now, I know nothing about. ” Dr. Charles S. Potts, a witness for the plaintiff, was asked this question: Mr. Fronefield: “Q. From your examination of Bertha Gillman, after having received a full history of her case, what, in your judgment is the least time required and the least expense required to give her the rest cure of which you have spoken?” Mr. Howell: I object. The Court: If it is divided up, I will let him state the least time and rule the other out. Mr. Fronefield: I will make the question refer to the least time required. Mr. Howell: I object to that question. The Court: The doctor may give his judgment as to the probable time in which she will get well with proper treatment. Mr. Howell: My objection is the doctor does not know the entire history of the case. The Court: I take it for granted if he has not sufficient knowledge to enable him to state it he won’t state it. If he has no such knowledge as will enable him to give an opinion upon that, I take it for granted he won’t give it. Mr. Howell: He said a year. “A. I probably said a year.” Mr. Fronefield: “Q. What is your answer to that question, • the least time?” The Court: You may state whether in your judgment she would be restored in a year; exception. [2] “A. If you give me the least time, I would say six months, although I would not promise it in that time.” Dr. Charles S. Potts, a witness for the plaintiff, was asked this question: “Q. Doctor, in your judgment, could Miss Gillman’s condition be caused by the accident of being hurt on a trolley car, such as has been detailed in your presence here. A. Yes, sir. Undoubtedly so.” Mr. Howell: I object. Objection overruled. [3] Mr. Howell: I formally ask an adjournment until to-morrow to permit the obtaining of the presence of the two physicians who are prevented from coming on account of important cases of illness that they cannot leave. Mr. Fronefield: Who are the physicians? Mr. Howell: Dr. S. R. Crothers and Dr. Joseph Manasses. Mr. Fronefield: I object to the continuance. The Court: Objection sustained. [4] Mr. Howell: I then would formally ask for a continuance of this case on account of the absence of a material witness who has been subpoenaed to be here. He has been in attendance, but as he is a physician was compelled to absent himself in attendance of an ill patient — the witness is Dr. S. R. Crothers. I ask for a general continuance to the next term of court. Mr. Fronefield: That is also objected to for the same reason and because Dr. Crothers simply is called as an expert to give us his opinion as to the illness of the plaintiff, it appearing that the doctor was present, representing the defendant company, at the operation in 1906. The Court: Objection sustained. [5] The court charged the jury in part as follows: [The testimony read this morning of Dr. Manasses says that she was nervous and neurasthenic, both, if there is any difference in them what they are, prior to June, 1904, and the contention of the defendant is that what she is suffering from now is but a continuation of her old trouble and that there was nothing took place on this car on June 9,1906, that brought about the trouble or increased it, because it is quite apparent that if it was brought about by the shock given to her by being thrown against the car and the company was negligent and she was not, then she would be entitled to recover and if that was the primary cause of the trouble, and she would also be entitled to recover if that happened if it increased her former difficulties or trouble. There has been some testimony about whether that would tend to increase the former trouble, if it had existed. You will remember it. It is all a question for you entirely. No law about it except the law the court has laid down.] [6] [Now, she will be entitled to recover if you find she was not negligent, find that the company was, and find that the cause of her trouble arose out of the shock which she says she received there, or her trouble increased by reason of what took place there. Then what will compensate her? She will be entitled to be compensated for her pain and suffering, whatever that has been in the past and will likely be in the future. It is a very difficult thing to .tell, but you will have to take up that question and dispose of it. She will also be entitled to be compensated for her loss of earning power.] [7] . Defendant presented these points: 4. If the jury believe that the plaintiff got on the car while it was standing still and that the car was started in the usual and ordinary way after the plaintiff was in the car, but before she had an opportunity to seat herself, there can be no recovery in this case, and your verdict must be for the defendant. Answer: We would affirm that unless the car was started hastily, recklessly, power turned on so that it would start suddenly, because it would be negligent for a motorman or a conductor, where they had charge of the moving of a car to start it so suddenly and recklessly as to throw persons down who were in the aisle seeking seat. That is affirmed as a general proposition. [8] 11. The burden is on the plaintiff to convince the jury that any pain and suffering she may have endured was caused by an injury at the defendant's hands, and from no other cause. Unless she has done so, your verdict must be for the defendant. Answer: That is refused. If it means that all her troubles must have arisen out of the accident. In other words, if the condition she- says she is in now was an old and previous condition and this accident happening was not the cause of that condition, but it increased it, still she may recover. Therefore this point is refused. [9] 17. Under all the evidence in this case, the verdict must be for the defendant. Answer: That is refused. It will be for you. [10] Verdict and judgment for plaintiff for $3,950. Defendant appealed. Errors assigned were (1, 2) rulings on evidence, quoting the bill of exceptions; (4, 5) refusal of continuance; (6-10) above instructions, quoting them.