80 N.W.2d 625 (Minn. 1957), 36855, Briggs v. Chicago Great Western Ry. Co.

Docket Nº:36855.
Citation:80 N.W.2d 625, 248 Minn. 418
Opinion Judge:The opinion of the court was delivered by: Matson
Party Name:James E. BRIGGS, Respondent. v. CHICAGO GREAT WESTERN RAILWAY COMPANY, Appellant.
Attorney:Grannis & Grannis and Catherwood, Hughes & Alderson, for appellant.
Case Date:January 11, 1957
Court:Supreme Court of Minnesota

Page 625

80 N.W.2d 625 (Minn. 1957)

248 Minn. 418

James E. BRIGGS, Respondent.



No. 36855.

Supreme Court of Minnesota.

January 11, 1957

Rehearing Denied Feb. 13, 1957.

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Syllabus by the Court.

1. The filing of an affidavit of prejudice against a judge to whom a case has been assigned is a waiver of any objection to the jurisdiction of the court.

2. Although a qualified expert witness may properly be permitted to explain the meaning of technical language or terms found in records which are in evidence, the majority rule which prevails in this jurisdiction does not permit an expert witness to base his opinion upon the opinion of another expert witness, or upon the observations of fact reported by another expert witness, unless such observed facts are included in an hypothesis to be supported by other evidence as to their truth.

3. Although it is misconduct for jurors to take an unauthorized view of the

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scene of an accident, or of an instrumentality involved in an accident, a new trial should not be granted for such misconduct if the trial court is reasonably certain that no prejudice resulted, and the duty of determining whether such misconduct was prejudicial, like other questions of fact, rests primarily upon the trial court and its decision thereon will be reversed only for an abuse of discretion.

4. In a civil action, the testimony at a former trial of a nonresident witness, who is not within the jurisdiction of the court, is admissible in a pending trial when it appears that the party against whom the testimony is offered (or a party with substantially the same interests as to motive with respect to the outcome of the litigation) had on the former trial an adequate opportunity by cross-examination to sift the testimony and when it further appears that such testimony at the former trial pertained substantially to the same issues as those to which it is applicable in the pending trial.

[248 Minn. 419] 5. What is proper rebuttal evidence rests almost wholly in the discretion of the trial court.

6. A motion for a new trial on the ground of newly discovered evidence is addressed to the sound discretion of the trial court; and, if such evidence is merely cumulative, contradictory, or impeaching of evidence adduced during the trial, a denial of a new trial is not an abuse of discretion.

7. It is the general rule that testimony elicited by cross-examination of a patient as to communications with his physician is not voluntary and therefore does not constitute a waiver of the physician-patient privilege.

8. Although the hypothetical question must embody substantially all admitted or undisputed facts relating to the ultimate issue, and should also include facts which the jury might reasonably find to be true, it does not follow that the failure to include all pertinent or material facts is a basis for a reversal as long as the jury was not misled to the prejudice of the adverse party.

9. Whether a hypothetical question presents an adequate foundation for an expert opinion rests largely in the discretion of the trial court and its decision will not be reversed except for a clear abuse of that discretion.

10. Portions of an expert witness's testimony which are inflammatory and likely to engender bias may properly be stricken by the trial court.

11. Once a witness has unequivocally admitted having previously made inconsistent statements in a written report, the written report becomes inadmissible since proof of the inconsistency is no longer necessary or material.

[248 Minn. 420] 12. In a personal injury suit the incidence of Federal income taxation is not a proper factor to be considered by the jury in making an award of damages and it is, therefore, improper to instruct the jury that an award for damages for impairment of earning capacity, whether past or future, is exempt from such taxation.

13. Lest a lawsuit become a travesty and not an adjudication of disputed facts under the law, any deliberate or intentional resort to pure bias as an instrument of persuasion before the jury not only justifies but requires corrective action by the trial court of its own motion.


Grannis & Grannis, South St. Paul, Catherwood, Hughes & Alderson, Austin, for appellant.

Eugene A. Rerat, Minneapolis, Plunkett & Plunkett, Austin, Bonner & Clements, Minneapolis, of counsel, for respondent.

MATSON, Judge.

Appeal from an order denying defendant's motion for judgment notwithstanding the verdict or for a new trial.

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This action, now before this court for the third time, 1 was brought under the Federal Employers' Liability Act, 45 U.S.C.A. §§ 51 to 60, for damages for injuries claimed by the plaintiff to have been caused by the defendant's negligence while he was in its employ.

Aside from the question of whether the evidence sustains the verdict as to how the accident happened and as to the cause of plaintiff's[248 Minn. 421] blindness, we have issues as to: (1) Whether the court erred in failing to strike the case from the calendar for failure to file a note of issue, (2) misconduct of a juror in taking an unauthorized view of the engine, (3) alleged error in ruling upon the admissibility of medical testimony and upon the admissibility of other evidence, (4) failure of the court to instruct the jury that any amount recovered by the plaintiff was exempt from Federal income taxes, and (5) whether alleged misconduct of the counsel was prejudicial.

Taking the evidence in the light most favorable to the verdict, it appears that the accident occurred on June 20, 1948, which plaintiff was working as the fireman on a switching crew in the Oelwein, Iowa, yard. During the switching operation, the Diesel engine hit a broken rail which wedged the sandpipe on the engine down under the wheel of the engine. The plaintiff claims that he was ordered by the engineer to crawl under the engine and attempt to pry the sandpipe away with a crowbar. While under the engine, the airbrakes were suddenly released blowing dust and dirt into plaintiff's eyes. Because the plaintiff thought the sudden release of the brakes meant that the engine was going to move with him underneath, he became frightened and jerked back in a frantic effort to get out. In doing so, he struck the base of his skull against the frame and steps, twisted his neck, and hit the side of his head. Plaintiff was stunned, but managed to crawl out. He asserts that the engineer, who was in charge of the engine crew, was aware of the injury. After finishing the remainder of the shift, plaintiff returned home. His eyes, however, continued to be painful and blurry, his neck ached, and he was emotionally upset. Plaintiff's testimony as to the occurrence and the circumstances of the accident was corroborated by two other members of the switching crew.

Defendant denies that plaintiff was injured as alleged or that there was a broken rail. Defendant also contends that it received no notice of any accident involving the plaintiff until May 10, 1950, about 23 months afterward, when it was served with a summons and complaint in this action. The engineer denied that any such incident as the broken rail had occurred and denied that he had [248 Minn. 422] ever ordered the plaintiff to go under the locomotive. He could not recall that plaintiff had been injured at any time while he was working with him as a fireman. He admitted, however, that he had signed a statement for the plaintiff that he remembered encountering a broken rail on June 20, 1948. Another member of the switching crew said he could not recall that such an accident had happened. The roadmaster at the Oelwein yards testified he had no record of any repairs being made during the month of June 1948 on the track alleged to have a broken rail. There was also a sharp conflict in the evidence as to whether it wsa physically possible for the plaintiff to use a crowbar in the position he allegedly occupied under the locomotive.

It was for the jury to resolve the conflict in evidence. We cannot say that the evidence adduced by the plaintiff as to how the accident happened is so improbable that it does not sustain the jury's verdict.

Does the evidence support the verdict that plaintiff's blindness was proximately

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caused by the injuries sustained when he struck the base of skull, twisted his neck, and bumped the side of his head in trying to get out from under the locomotive? Defendant asserts that any injuries he sustained contributed nothing to his blindness and that such blindness was caused solely by a longstanding and neglected case of diabetes which went out of control and finally developed into diabetic retinitis (diabetic retinopathy). No useful purpose will be served by reviewing in detail plaintiff's testimony that after the accident his eyes became painful and his vision became blurry and steamy as if he were looking through a cloud. Neither is it necessary to give a detailed analysis of the voluminous and conflicting medical testimony. The...

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