Quaife v. Chicago & Northwestern Railway Co.

Taylor, J".

The instructions given by the court and recited above were not excepted to by the learned counsel for the defendant; and they undoubtedly presented the questions involved in them fairly to the consideration of the jury.

The learned counsel for the appellant insist that the instructions asked should have been given; that the true rule as to the sufficiency of the evidence on the part of the plaintiff, in an action charging the defendant with negligence, was correctly stated in these requests — that is, that before the jury can find in favor of the plaintiff, they must find that the evidence leaves no doubt as to the fact of such negligence. If the rule as stated in these instructions imist govern, then more plenary proof of the fact in issue would be required in these cases than is now required in criminal actions. In such cases the jury are to be satisfied of the guilt of the accused -only beyond a reasonable doubt in order to convict; but these instructions would require the jury to find the negligence of the defendant proved, not only beyond a reasonable doubt but beyond any doubt, reasonable or otherwise, before the plaintiff could recover.

We think the learned counsel is mistaken in his application of the rules of evidence to a case of this kind. The cases cited to sustain it fall' far short of doing- so. The cases most favorable to the learned counsel’s proposition go no further than holding that where the evidence of negligence offered by the plaintiff is equally consistent with the absence as with the existence of negligence, then the plaintiff fails in his proofs. *520 Baulec v. R. R. Co., 59 N. Y., 356, 366 , and cases cited. But when the plaintiff’s evidence tends more strongly to prove negligence than it does the absence of negligence, then, like all other questions in a civil action, the question is for the jury, and their verdict is to be governed by the preponderance of evidence, and not upon the absence of all doubt as to the truth of the facts sought to be proved. The true rule was stated by this court in Blaeser v. Ins. Co., 37 Wis., 31 -38, thus: “In civil actions it is the duty of the jury to weigh the evidence carefully, and to find for the party in whose favor the evidence preponderates, although it is not free from reasonable doubt;” and this rule applies to every issue of fact in the case.

In the case of Hart v. Hudson River Bridge Co., decided in the court of appeals of New York, reported in the Albany Law Journal of February 14,1880, p. 134, the rule as to when the question of negligence is one for the jury, is stated as follows: “It is incumbent on the plaintiff to show affirmatively that the negligence of the defendant was the sole cause of the injury; it is not necessary to do this by positive and direct evidence of tíre negligence of the defendant and of freedom from negligence of the plaintiff. Circumstances may be shown from which an inference of the necessary facts may be drawn; and when the circumstances are such that the inferences to be drawn are not certain and incontrovertible, but may be differently made by different minds, it is for the jury to determine them. And it is not necessary to warrant this court in adjudging that there was error in granting a nonsuit, to be convinced that the legal probabilities are so strong as that the plaintiff is entitled to a verdict.” Substantially the same rule is laid down by this court in the following cases: Duffy v. Railway Co., 32 Wis., 269, 273 ; Patten v. Railway Co., id., 524, 531; Wheeler v. Town of Westport, 30 Wis., 392, 406 ; Sutton v. Town of Wauwatosa, 29 Wis., 21, 33 .

The request of the defendant to instruct as above stated was *521 properly refused, and the jury were fairly instructed upon the question of the proof of negligence on the part of the defendant, as well as the proof of contributpry negligence on the part of the plaintiffs.

It was claimed by the defendant, .on the trial of this action at the circuit court, that the plaintiff Mrs. Quaife was not injured to the extent asserted by her; that she was feigning sickness, lameness and debility for the purpose of enhancing the damages; and a large part of the evidence on the part of the defense was introduced to Sustain that claim. During the trial Mrs. Quaife submitted to an examination by six surgeons and physicians, three selected by her and three by the defendant; and, after making their examination, they were all sworn upon the trial, and all united in saying that they could discover nothing in her physical appearance' which would indicate that she was suffering the pains, weakness and lameness which she claimed on her part to be laboring under, and which ■had been, as she claimed, continuous from the time of the accident to the day of the trial. In this state of the evidence upon this question, the learned counsel for the defendant claims that the circuit judge erred in permitting one of the medical men summoned by the plaintiff to answer the following questions:

“Question. Do you tliiuk that you could tell whether or not she suffered pain by the movement of the hip, judging from all the examination, including what she said? Answer. I think I could. Q. Mow go on and state whether in your opinion she did suffer pain? A. She gave every indication of suffering pain. Q. In your opinion did she suffer pain ? M. Tes, sir; that is my opinion, that she did. This pain, if. it exists, indicates some trouble in the hip joint.”

These questions were all objected to, and exception taken to the admission of the answers as evidence in the case. In order to determine whether the answers to' these questions were properly admitted in evidence, it is, perhaps, necessary that *522 the whole testimony of this witness, given as well before as after the answers, should be stated. On the direct examination, and before the above questions were asked and answered, he stated:

“ I am a physician and surgeon. I assisted at the examination of Mrs. Quaife yesterday. Daring the examination she seemed to be quite nervous, and more or less excited; she complained of considerable palpitation of the heart. I think she said she felt it every day more or less. I assisted in the examination of the thigh and hip. I didn’t find any physical indications or signs of inj ury.”

Here followed the questions and answers above given, and which were objected to; and, immediately after answering; such questions, the witness was cross-examined, and testified as follows: “I found nothing in the hip by examination; there must be some defect in the limb to produce pain, and that defect I could not find. The general opinion was that we could not find anything. The only way I could tell that she ached was by what she said, and how she looked and appeared.” On a re-direct examination he testified: “ I experimented for the purpose of detecting whether there was pain or'derangement of the hip joint, by striking on the bottom of the foot; and that seemed to give her pain in the hip joint.” The foregoing is all the testimony given by this witness on the trial.

It is very earnestly insisted by the learned counsel for the appellant, that upon this evidence the questions were improper, for the reason that it was in effect asking the witness whether he believed the statement of the plaintiff Mrs. Quaife, made at the time of the examination and as a witness on the trial, that she suffered pain. It is argued that as the witness had sworn that he could find nothing in her physical condition that indicated the existence of pain, or which suggested the possibility of such pain, his answer must necessarily be based upon what she said alone; and that if based on that alone, it could only be an opinion of the witness as to the veracity of the plaintiff.

*523 The claim of the plaintiffs on the trial was, that Mrs. Quaife was lame in her hip, and that she suffered pain there; that she was and had been unable to use her limb as she had used it before the accident; that it was so weakened and injured by the accident that she could not for a long time use it at all for the purpose of walking; and .that it was still so weak and painful as to render it unsafe for her to attempt to walk without the aid of a crutch. The examination of physicians made upon the trial was made at the suggestion of the defendant, for the purpose of testing the truthfulness of this claim on the part of the plaintiffs, and to place before the jury the real condition of Mrs. Quaife, so far as such condition could be ascertained by the experience, knowledge and skill of the expert medical witnesses. The examination was promptly submitted to by Mrs. Quaife.

The experts, after the examination, were put on the stand as witnesses, for the purpose of giving the jury the facts ascertained by them from such examination. We are of the opinion that these experts would, in this case, be in the same position as if they had been called in any other case of sickness or injury to attend a patient, and determine, so far as they could, the real condition of such patient. In this case the patient complained of pain in the hip and lameness of the limb as amongst her troubles. The experts examine the limb and hip, and find no such appearance as would indicate lameness or pain. Yet the patient insists upon the fact of lameness and pain. It becomes then a question with the experienced physician, whether such pains and lameness are imaginary, feigned or real; and, to determine this, he must resort to other evidences than those to be derived from an examination of the limb itself. And in such case we think it is clearly competent for the expert to give an opinion from the general appearance, actions and looks of the patient, and what she says at the time in regard to her condition.

Although the examination in this case was not made for the *524 purpose of giving medical advice, still it was made for the express purpose of ascertaining whether the plaintiff was suffering from the-existence of a present disease, and the nature of such disease; and for the ascertainment of that object the statements of the patient, or person examined, would be as necessary for the enlightenment of the medical experts as though the examinaron were made with the purpose of administering remedies. It is true that statements made by the person claiming to be injured, made pending an action to recover damages for such injury, might not be entitled to the same weight as if they had been made before an action commenced and for the purpose of getting medical advice; still this objection does nofr>go to the competency of the evidence, but to its credibility.

Both ^parties on the trial seem to have conceded that the statements made by the plaintiff to the examining physicians were competent evidence, both for and against her; and this was undoubtedly the correct view of the case. The experts in making- the examination would naturally and necessarily, in order to make a fair one, inquire of the person to be examined whether she suffered pain or otherwise, where the pains were located, how long they had existed, and such other questions as their superior knowledge and skill would suggest for the purpose of determining whether her assumed illness was real or feigned; and, having made all proper physical examinations, they would form an opinion from her statements and such physical examinations, whether the disease was feigned or real. If, in order to make a fair examination of the plaintiff by the experts, it was necessary or proper to interrogate her at all as to her present condition, then it seems to us that it is clear that, in giving an opinion as to her present condition,- her answers to such inquiries must necessarily be taken into consideration, as well as her actions and appearance.

"We think the rule applicable to this case is correctly stated by Chief Justice Bigelow in the case of Barber and wife v. *525 Merriam, 11 Allen, 322 -324: “ The opinion of a surgeon or physician is necessarily formed in part on the statements of his patient, describing his condition and symptoms, and the causes which have led to the injury or disease under which he appears to be suffering. This opinion is clearly competent, as coming from an expert. But it is obvious that it would be unreasonable, if' not absurd, to receive the opinion in evidence, and at the same time to shut out the reasons and grounds on which it was founded. Such a course of practice would take from the consideration of court and jury the means of determining whether the judgment was sound, and his opinion well founded and satisfactory. . . . The party producing the witness, and who relies on his opinion, should be allowed the privilege of showing that his testimony, as an expert, is the result of due inquiry and investigation into the condition and symptoms of the patient, past and present. . . . The existence of many bodily sensations and ailments which go to make up the symptoms of disease or injury, can be known only to the person who experiences them. It is the statement and description of these which enter into and form part of the facts on which the opinion of an expert as to the conditions of health or disease is founded.” See, also, Bacon v. Charlton, 7 Cush., 581 -586; Aveson v. Kinnaird, 6 East, 196; Thompson v. Trevanion, Skinner, 402; 1 Greenl. Ev., 102; Palmer v. Crook, 7 Gray, 418 ; Rowell v. City of Lowell, 11 Gray, 420 ; Railroad v. Sutton, 42 Ill., 438 ; Denton v. State, 1 Swan (Tenn.), 297; Le Marchant's Gardner Peerage Case, 78, 175, 178.

It has been held in some cases, that statements of the kind above mentioned, made after suit brought, should not be received for any purpose, not even for thé purpose of iu part founding an opinion upon them by an expert. We think, however, the true rule on this point is also stated in the case first above cited. Chief Justice Bigelow, in his opinion, page 326, says: “ It is suggested, in behalf of the defendant, that *526 the statements in the present case were made by the plaintiff after the commencement of the action. But we do not think that for this reason only they ought to have been rejected. It was a circumstance which may have detracted from the weight of the evidence of the opinion of the physician, so far as it was founded on these statements. But as the statements were made to a medical man, for the purpose of receiving advice, they were competent and admissible.” And so, in this case, the defendant having called for personal examination of the plaintiff, by expert witnesses, for the purpose of determining whether the plaintiff was suffering from disease or injury, and with a view of having those witnesses testify as to the results of such examination, and give their opinions if called upon, the plaintiff had the right to have them take into consideration her statements made upon such examination, in making up their opinions as to her present condition.

It would have presented a different question, if the plaintiff on her part, without the knowledge or presence of witnesses for the defendant, had called experts to examine her as to her present condition, for the purpose of giving evidence on the trial, and not for the purpose of giving medical advice. In that case the objection would perhaps have been well taken, that in forming an opinion as to her condition the witnesses should not be allowed to take into consideration her statements made at such examination. In such case the statements would be subject to a suspicion that they were made for the purpose of getting an opinion favorable to her. In the present case, the examination was not sought by her, and her statements were made in answer to interrogatories put by experts, who are supposed to be impartial, if not hostile, to her, and all her statements were made subject to a full cross-examination by the experts, so that there would be very little probability that they would be misled or influenced by any colored or false statements. We think the questions and answers were admissible, and that it was for the jury to say what *527 weight should be given to the opinion under all the circumstances.

It is objected that the court erred in permitting tho following question to be put and answered by one of the plaintiffs’ witnesses, Dr. Beebe: “ Might there not have been a fracture of the neck of the femur, and you not be able to discover it? ” Ansxoer. “ That may be in the range of possibilities, but not probable; the usual organic changes and usual symptoms accompanying that fracture were not present.”

This witness was one of the six who had made the personal examination of the plaintiff during the trial, and, although called by the plaintiff, had testified that in such examination he had discovered nothing in her physical condition which indicated that she was suffering pain from the alleged injury at the time. The witness, though necessarily called by the plaintiff, as one who had been selected by her to assist at the examination, did not testify very favorably to her; and it was in the discretion of the court whether a question in the nature of cross examination should be allowed to be put- by the party calling him. It is not denied but that the question would have been a proper one to put to the witness on cross examination, had he been called by the defendant. The object of the question was, to show that an injury might exist, and did in fact exist, although there were no outward manifestations.

This exact question was before the supreme court of Massachusetts in the case of Rowell v. City of Lowell, 11 Gray, 420 ; and that court held that such a question was proper upon the cross examination of a surgeon testifying as an expert. -In the present case, although the question was put upon direct examination, it was put to a witness who, although called by her, had not testified favorably; and there was no error, therefore, in permitting the question.

The point made that the plaintiffs were permitted to contradict one of their own witnesses, by way of impeachment, is hardly sustained by the record. The record shows that the *528 witness referred to, Dr. Booth, was recalled by the defendant as its witness, for the purpose of contradicting a statement sworn to by the plaintiff Quaife; and that after he was examined by the defendant, the plaintiff cross examined him, and, without any objection on the part of the defendant, he testified as follows: “ I did not tell Quaife, a day or two after the accident, that I jumped off the forward end of the car on the platform, and had only just time enough to get on as they started. I got off the rear end of the smoking car, and went to the other end, and saw my man, and got on at the forward end.” The plaintiff Mr. Quaife was recalled, and on this subject stated, “ that, a day or two after the accident, Dr. Booth stated to him that he got off the rear end of the smoking car, and jumped on to the forward end of the smoking car just as they were starting.”

It will be seen, by an examination of the two statements, that they do not conflict in any material part. The record also shows that no objection was taken to the statement made by the witness Quaife on the ground that it was intended to impeach his own witness, but simply on the ground that the evidence was not rebutting.

The questions as to the nature and gravity of the injuries received by the plaintiff Mrs. Quaife were fairly and clearly submitted to the jury by the learned circuit judge. And, as a basis for assessing damages, they were told, in the strong language of the learned counsel for the defendant, that “ although the jury might guess that some other injury might have been received by Mrs. Quaife, at the time in question, than is proved by the evidence, it is improper for the jury to do so. The jury are instructed not to do so, but to confine themselves to the consideration of such injuries, and only such injuries, as are proved by the evidence given in court to have been received by Mrs. Quaife at the time in question.”

If the evidence of the learned surgeons and physicians who made the examination of Mrs. Quaife, one of whom had *529 attended ber from tbe time of tbe aceidént, failed to convince tbe jury that ber injuries were of a trifling character, and that sbe was feigning sickness and decrepitude for tbe purpose of enhancing ber damages; and if tbe learned doctors, after making a thorough examination oUber condition at the time of tbe trial, were unwilling to give it as their opinion upon oath that her injuries were slight and temporary in their nature, and that sbe was simulating lameness and disease — it would be presumptuous for this court to decide this issue of fact against the verdict of the' jury, upon tbe evidence given in this case. It will hardly be expected that we can say, upon tbe evidence given on tbe trial, that tbe finding of tbe jury that ber injuries were serious and permanent in their nature is unsupported by tbe facts proved; and, unless we can so say, tbe verdict must stand. Tbe verdict is not excessive, except upon tbe theory that tbe evidence shows so clearly that the injuries were trifling and temporary, that tbe verdict of tbe jury to the contrary must be set aside as entirely unsupported. Most ’ certainly the evidence does not show this. "We are unable, therefore, to say, as a matter of law, that the damages assessed are excessive.

Tbe case seems to have been fairly .tried, and tbe judgment of tbe circuit court must be affirmed.

By the Court. — Judgment affirmed.