Grand Rapids & I. R. Co. v. Huntley

• Decision Date: 03 April 1878
• Citation: 38 Mich. 537
• Court: Michigan Supreme Court
• Parties: Grand Rapids and Indiana Railroad Company v. Helen S. Huntley

38 Mich. 537

Grand Rapids and Indiana Railroad Company v. Helen S. Huntley

Supreme Court of Michigan

April 3, 1878

Submitted February 1, 1878

Error to Allegan.

Trespass on the case. Defendant brings error.

Judgment reversed with costs and a new trial granted.

Hughes O'Brien & Smiley and N. A. Earle for plaintiff in error. A physician's testimony as to the condition of a person must be based on actual knowledge, Muldowney v. Ill Cent. R. R., 39 Ia. 622; Moore v. State, 17 Ohio St., 521; Rowell v. Lowell, 11 Gray 420; exclamations of pain, while admissible as tending to show the actual condition of the person making them (Elliott v. Van Buren, 33 Mich. 49; Johnson v. McKee, 27 Mich. 471; Hyatt v. Adams, 16 Mich. 200) must be such as are caused by actual suffering and not brought out to be used as evidence, 1 Greenl. Ev., § 102; Rex v. Foster, 6 C. & P., 325; Bacon v. Charlton, 7 Cush. 581; Reed v. N. Y. Cent. R. R., 45 N. Y., 574; a person on board a train cannot give a reliable opinion as to its speed without skill and experience, Shearman & Redf. Negl., § 478; McKonkey v. C. B. & Q. R. R., 40 Ia. 205; Brown v. Buffalo & State Line R. R., 22 N. Y., 191; an experienced conductor is competent to testify as to the condition of ties, Jeffersonville R. R. v. Lanham, 27 Ind. 171; a railway company is not responsible for defects in machinery obtained of reliable manufacturers, and carefully examined without discovering them, Ardesco Oil Co. v. Gilson, 63 Penn. St., 146; Ingalls v. Bills, 9 Metc. 1; Ill. Cent. R. R. v. Phillips, 49 Ill. 234; Stevens v. Armstrong, 2 Seld. 435; Painter v. Mayor, 46 Penn. St., 213; Boswell v. Laird, 8 Cal. 469.

Philip Padgham for defendant in error. Exclamations of pam are admissible to show one's condition, Caldwell v. Murphy, 11 N. Y., 416; a passenger can demand the highest possible degree of care without reference to the kind of train he takes, Ind. & St. Louis R. R. v. Horst, 93 U.S. 291; a railway company is responsible for defects in its carriages even if it bought them from skillful manufacturers, Sharp v. Grey, 9 Bing. 457; Grote v. Chester &c. Ry., 2 Exch. 251; Francis v. Cockrell, 5 Q. B., 184; id., 500; Hegeman v. Western R. R. Corporation, 13 N. Y., 9; Angell Com. Carriers, § 523; 2 Kent's Com. [7th ed.], 602; railroad companies are held to the utmost care in providing suitable and proper carriages, engines, tracks and agents, Warren v. Fitchburg R. R. Co., 8 Allen 230; McElory v. Nashua &c. R. R., 4 Cush. 400; Schopman v. Bost. & Worcester R. R., 9 Cush. 24; Gonzales v. N. Y. & Harlem R. R. Co., 39 How. Pr., 407; Reed v. N. Y. Cent. R. R., 56 Barb. 493; Toledo, Wabash & Western R. R. v. Apperson, 49 Ill. 480.

OPINION

Campbell, C. J.

Suit was brought by Mrs. Huntley for personal injuries suffered on the 5th day of November, 1874, by reason of an accident caused by a passenger car being thrown fro the track and upset. The testimony showed that the mischief was caused by the breaking of an axle containing a large flaw, within the wheel or near its edge. Those witnesses who made any actual examination found the flaw entirely within the axle, and covered by a small thickness of sound metal. The suit was tried in April, 1877, about two years and a half after the accident. Mrs. Huntley was injured in the shoulder, and claimed that the injury was permanent.

Testimony was introduced bearing upon the condition of the cars and track, and the speed of the train, as well as concerning the character of the injury. The principal questions arise upon the medical testimony and upon the charge; although some other points are presented.

We do not consider it necessary to dwell minutely on the testimony of speed. It was held in D. & M. Rw. Co. v. Van Steinberg, 17 Mich. 99, that questions touching the speed of trains were not properly scientific inquiries, and were not beyond the competency of ordinary witnesses who had means and habits of observation. In this case it may be doubted whether the witnesses were all near enough to observe, and some of them gave no such data as to indicate what the speed was except as to its comparison with ordinary rates. It would be going too far to hold that any increase over ordinary speed was evidence of danger or of negligence. The testimony should at least show approximately what the real rate was, and that it was faster than safety warranted, before the case should be allowed to go to the jury on such a point. The well known liability of all common observers to be deceived as to the rate of speed of heavy trains, renders it necessary to guard as far as possible against vague testimony, which cannot be directly met or corroborated by the proof of persons having actual knowledge on the subject. Testimony of actual speed is tangible, whatever may be the value of the opinions of particular observers; but opinions on relative speed, without some standard of rapidity are of no value by themselves. In regard to opinions of persons riding in the cars, and not observing from the outside, we are not prepared to say they may not be received, but we think they should be excluded unless the witnesses first show such extended experience and observation as to qualify them for forming such opinions as would be reliable. It is not presumable that ordinary railway travelers usually form such habits.

We are also of opinion that no defects in the track could be relied on to show negligence contributing to the accident except those existing where the track was injured or displaced, and that testimony as to the condition of the road away from the scene of the injury was improper to make out a cause of action, and could only tend to raise false issues. The testimony should be confined to the time as well as place of the accident.

We think there was no error in excluding testimony of the cost of Pullman cars and other stock. The law will not allow negligence to be presumed without proof of actual negligence. All speculations as to the antecedent probabilities must yield to the facts; and if such speculations can be indulged in, there would be no end to inquiry. It is easy to imagine a great variety of circumstances which might induce some persons to take more care than they would under others; but it would be a very strained presumption that carriers of passengers must be expected to care more for the safety of cars, expensive or inexpensive, than for the lives and limbs of those who travel on their trains.

The fitness of ties for use is a matter which a conductor of several years' standing must be presumed to understand. His position is a very responsible one, and if he has not familiarized himself with such things as are customary in railway construction, he can hardly have used his eyes to much purpose.

The nature of the injury which Mrs. Huntley suffered became a leading subject of discussion. There was no apparent dispute concerning the original suffering of a slight wound on the head and the dislocation of a shoulder, which was at once set. The chief dispute was whether this dislocation involved any permanent injury, and also whether there was any injury to the spinal column which led to lasting trouble.

Dr. Turner attended her a short time after the injury, and about ten days, after which she was left in charge of Dr. Ball. He visited her again about the time suit was begun, for the purpose of making an examination, and again about three weeks before the trial or more than a year after the second visit. In each of the two latter visits he and another physician, Dr. Ball, with Dr. Andrews, examined her without removing the clothing from her back or shoulder and, as the testimony seems to show, made the examination by measuring the arm and shoulder in different positions and pressing on the spine at various points. He asked no question about the spine, but she made complaint of pain above the shoulders.

Upon this testimony of examinations Dr. Turner was allowed to state what in his opinion ailed Mrs. Huntley, and whether it was permanent. His conclusion was that she received a spinal injury at the time of the accident by a sprain--such a concussion as produced laceration and effusion of blood, resulting in a pressure on the spinal cord interfering with the functions of the nerve fluid, and preventing the assimilation of food. That she had a good appetite but could not digest her food, which results in emaciation; that she had urinary difficulties which is always the case, and that was the condition he thought the woman was in. That the difficulty was permanent.

There is probably some error in taking down some parts of the testimony, which as it reads on the record is rather blind and incoherent. But we have stated it as it was evidently designed to appear.

We think this testimony was inadmissible. No portion of it was the result of the witness' conclusions from his own examination, which, according to his statement on the stand was purely superficial and without inquiry as to any of the injuries or maladies beyond the local injury. He was not her attending physician for purposes of treatment, nor counseling physician for any such purpose, nor did he examine her for purposes of treatment, but merely as auxiliary to a law-suit. The case shows very fully from his own statement that he had no means of knowing or suspecting from any treatment or examination whether there was any spinal, or dyspeptic, or urinary difficulty, or of, what nature, or when discovered or originating, or how caused. He does not state on what he based his conclusions, but he does show that he had no knowledge to base them on. They are not scientific opinions--which can only be founded on established facts. They do not purport to be hypothetical, and were not given in answer to any...