Russ v. Wabash Western Ry. Co.

• Citation: 20 S.W. 472,112 Mo. 45
• Parties: RUSS v. WABASH WESTERN RY. CO.
• Decision Date: 14 November 1892
• Court: United States State Supreme Court of Missouri

20 S.W. 472

112 Mo. 45

RUSS v. WABASH WESTERN RY. CO.

Supreme Court of Missouri.

November 14, 1892.

HYPOTHETICAL QUESTIONS — MASTER AND SERVANT — NEGLIGENCE OF MASTER — WHAT IS.

1. The admission of answers to hypothetical questions predicated on facts not proven is reversible error, which is not cured by allowing the opposite party to propound like erroneous questions.

2. Where defendant railroad company's section foreman, under whom plaintiff was employed, directed a water keg to be placed on the front end of a hand car for his seat, and while the car was in motion got up and allowed the keg to fall off, thus causing the car to leave the track and injure plaintiff, the injury was from the negligence of the foreman, for which defendant is liable.

In banc. Appeal from circuit court, St. Charles county.

Action for personal injuries by William Russ against the Wabash Western Railway Company. Plaintiff had judgment, and defendant appeals. Reversed.

F. W. Lehmann and Geo. S. Grover, for appellant. Nat C. Dryden and T. J. Rowe, for respondent.

BLACK, J.

This was an action to recover damages because of personal injuries received by the plaintiff while in the employ of the defendant company. The plaintiff and four other persons were section hands, and were all under the orders of one Bizzenberger, who was their foreman. The foreman and his men, including the plaintiff, were out on the road at work at a point west of O'Fallon. Preparatory to going east to O'Fallon, they placed their tools and a water keg on a hand car, and then started. The keg was large enough to hold 10 gallons, and on their way it rolled off in front of the car. It threw the car and the plaintiff and the other men off the track, and he was seriously and permanently injured. He was removed to a hospital in St. Louis, where he remained five days. At the expiration of that time he went to the defendant's office in St. Louis, where he executed a writing, whereby, for the consideration of one dollar and re-employment by defendant for such time only as might be satisfactory to defendant, he released defendant from all claims he might have for damages because of the injuries so received. The defendant answered by setting up, among other things, the release. To this the plaintiff made reply by admitting that he executed the same, and by alleging that at the time he signed it his mind was so impaired from the injuries which he had received that he did not know what he was signing. The complaint, and the only one, arising out of the pleadings and trial, as to this particular issue, is that the court erred in admitting certain expert evidence. The plaintiff produced several physicians, and his counsel propounded to them lengthy hypothetical questions, one covering seven pages of printed matter. The defendant objected to this question on the ground that it assumed facts not proved, and because it was wholly incompetent. In stating the facts from which the witness is asked to give his professional opinion, the question sets out at great detail the incidents and circumstances which it is assumed occurred at the defendant's office at the time the contract was signed. There was no evidence produced in the cause showing, or tending to show, that such incidents and circumstances occurred, and for this reason the question should have been excluded. Counsel, in propounding a hypothetical question to an expert witness, may assume any state of facts which the evidence tends to establish, and may vary the questions so as to cover and present the different theories of fact. But there must be evidence in the case tending to establish all of the facts stated in the question. If the question assumes any fact which the evidence does not tend to prove, it should be excluded. Rogers says: "To allow, on the direct examination, a hypothetical question to be put which assumes a state of facts not warranted by the testimony, is error, and counsel will never be permitted to embrace in one hypothetical question anything which the testimony does not either prove or tend to prove." Rog. Exp. Test. (2d Ed.) § 27. The following cases and many others are to the same effect: Williams v. Brown, 28 Ohio St. 547; Muldowney v. Railroad Co., 39 Iowa, 615.

Again, the question does not, in many respects, state the facts, but leaves it to the expert witness to say what the facts are; that is to say, whether the witnesses testified to the truth. Thus it states that the plaintiff appeared at the railroad office five days after the reception of the injury, with a letter signed by the physician in charge of the hospital, "which physician says he never wrote the letter." "He acted and talked, so Austin says, rationally, stating," etc. "Probably nineteen days after the reception of the injuries he marries, of which he claims to have no knowledge whatever." It was the duty of the jury, not of the expert witness, to say whether the physician wrote the letter, whether plaintiff talked rationally, and whether the plaintiff did not know of his marriage. The question should state that the physician did not write the letter, that plaintiff talked rationally on the one occasion, and that he did not know of his marriage. It is the province of the jury to say what the facts are, and the answer of the expert is of no value whatever if the jury do not believe the assumed facts to be true. If the assumed facts are found to be true by the jury, then the answer of the expert becomes of value. Hence it is that the assumed facts should be stated as facts, so that the jury can consider or reject the opinion of the expert, accordingly as they may find the assumed facts to be true or false.

The interrogatory under consideration is bad for the further reason that it parades before the jury a vast number of immaterial circumstances; circumstances which, if true, have no tendency whatever to show that the mind of the plaintiff was sound or unsound. Coupling into a question so many immaterial circumstances must have a tendency to mislead the jury into the belief that these immaterial matters are of some value. The plaintiff insists that the question propounded to the expert was not erroneous, in so far as it assumed unproved facts, because counsel for defendant in his opening statement to the...