Chicago, I.&L. Ry. Co. v. Gorman

• Decision Date: 24 November 1914
• Docket Number: No. 8330.,8330.
• Citation: 58 Ind.App. 381,106 N.E. 897
• Court: Indiana Appellate Court
• Parties: CHICAGO, I. & L. RY. CO. v. GORMAN.

58 Ind.App. 381

106 N.E. 897

CHICAGO, I. & L. RY. CO.

v.GORMAN.

No. 8330.

Appellate Court of Indiana.

Nov. 24, 1914.

Appeal from Circuit Court, Orange County; Thos. B. Buskirk, Judge.

Action by John Gorman against the Chicago, Indianapolis & Louisville Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.E. C. Field and H. R. Kurrie, both of Chicago, Ill., and W. J. Buskirk, of Paoli, for appellant. Perry McCart, of Paoli, and W. W. Hottel, of Salem, for appellee.

CALDWELL, P. J.

On a former appeal this cause was reversed, and a new trial ordered for error in excluding offered testimony. Chicago, Indianapolis & Louisville Ry. Co. v. Gorman, 47 Ind. App. 432, 94 N. E. 730. A second trial was had on the issues formed on an amended complaint in three paragraphs.

It is disclosed by the complaint that on the 15th day of October, 1907, appellant's railroad extended southward through Washington county, and that at a point south of Norris Station it intersected a public-highway, which also extended southward from said station. On said day appellant was driving a peddling wagon, drawn by three horses southward along said highway. As he drove said wagon onto said crossing a southbound freight train, operated by appellant, collided with appellee, and with said wagon and horses, whereby said horses were killed and said wagon and its contents destroyed and appellee seriously injured. Facts are alleged in each paragraph, charging appellant with negligence in operating said train. By the first paragraph appellee seeks to recover for the killing of said horses and the destruction of said property, by the second he seeks a recovery for said injuries to his person, and by the third he seeks recovery for both his property loss and the injury to his person. Since the first paragraph is based on such property loss, and the third paragraph includes such element, appellee in such paragraphs, both by general and specific averments, properly alleges his freedom from contributory negligence. Appellant concedes that each paragraph of the complaint states a cause of action. There is, however, a controversy respecting the character of the negligence charges, which controversy we shall consider later.

[1] The court did not err in overruling appellant's motion for judgment on the answers of the jury to the interrogatories propounded by the court. The substantial questions presented arise under the motion for a new trial, which questions we proceed to consider. Drs. Teaford and Boyd had examined appellee several times after he had received said injuries. These gentlemen were called by appellee as expert medical witnesses, and by questions directed to that end were permitted, over appellant's objections, to give their professional opinion respecting the origin and nature of said injuries. Preliminary to such questions, said witnesses had respectively detailed the facts ascertained by such examinations. Each of said questions so objected to contains substantially the following:

“From your examination of Mr. Gorman, *** basing your answer on your experience as a medical man and the facts that you have here detailed to this jury that you found existed,” etc.

The objection in each case goes only to the fact that the form of the question called into action the experience of said medical witnesses. As indicated, these witnesses were called and testified as experts. A questionpropounded to such an expert for the purpose of eliciting an opinion should be so framed as to require that such opinion be based on facts testified to by such witness, or on facts assumed hypothetically, or on both classes of facts. Gillett's Indirect and Collateral Evidence, section 210. Here no facts were assumed hypothetically, and since each of said witnesses was required to base his opinion on facts testified to by him, it is conceded that said questions were correct in form, except it be on account of the element of experience, included therein. It is argued that such element in such questions brings them under the condemnation of the rule announced in Horne v. Williams, 12 Ind. 324, to the effect that an expert medical witness may not give in evidence the particulars of his own private practice. We do not so understand the questions here. Experience is a very potent factor in the process by which a person becomes an expert in any line. An expert, as the word implies, is one having had experience. Ardesco Oil Co. v. Gilson, 63 Pa. 146; Gillett's Indirect & Col. Ev. § 209.

While, strictly speaking, it may be true that the word “experience” may mean the course or process by which one attains knowledge and wisdom, yet the former term is frequently used as the equivalent of the latter terms. The word “experience” implies skill, facility, or practical wisdom, gained by personal knowledge, feeling, or action. International Dictionary. The possession of practical wisdom is an essential in order that one may be an expert. The expert submits the facts in a particular case to the scrutiny of the wisdom so acquired, and thus he gives an opinion. Any reasonable construction of said questions leads to the conclusion that by the particular feature objected to said witnesses were called on to use the particular attribute without which they would not have been experts. The court did not err in overruling the objections to said questions. See Pennsylvania Co. v. Frund, 4 Ind. App. 469, 472, 30 N. E. 1116.

[2] Dr. Boyd, having testified in detail to appellee's condition, as revealed by a physical examination, made by him, then stated in response to a question that “in his opinion appellee's condition was the result of injury or disease.” He then stated that if such condition was the result of disease, such disease may have been caused by an injury. He was then permitted to answer the following questions, over appellant's objection: “What, in your judgment, is the fact as to whether or not Mr. Gorman is now suffering from some trouble which in its character is permanent?”-his answer being, “I am of the opinion that it will be.” Considering the close connection between said question and answer and the previous testimony of said witness and considering, also, his cross-examination, we think it apparent that said witness based his said opinion on facts which he had fully disclosed to the jury. The court did not err in overruling said objection. Louisville, etc., Co. v. Holsapple, 12 Ind. App. 301, 38 N. E. 1107; Pennsylvania, etc., Co. v. Frund, supra. See, also, Cleveland, etc., Co. v. Hadley, 170 Ind. 204, 82 N. E. 1025, 84 N. E. 13, 16 L. R. A. (N. S.) 527, 16 Ann. Cas. 1;Louisville, etc., Co. v. Wood, 113 Ind. 544, 14 N. E. 572, 16 N. E. 197;Tullis v. Rankin, 6 N. D. 44, 68 N. W. 187, 35 L. R. A. 449, 66 Am. St. Rep. 586.

[3] Dr. Green was called and examined as a witness on the subject of appellee's injuries and general physical condition. Appellant's attorney, while making his argument to the jury, produced a paper which he stated was a copy of the testimony given by said witness on his cross-examination, and which he proposed to read to the jury. On objection made, said attorney stated that said paper contained a complete copy of such cross-examination, and that it had been furnished to him by the official stenographer, and that he desired to state these facts and read such cross-examination in full to the jury. The court sustained said objection, stating, however, that said attorney in his argument might refresh his memory from said paper as to what the testimony of Dr. Green was on his cross-examination. The court's ruling is properly presented by a special bill of exceptions. Reed v. State, 147 Ind. 41, 46 N. E. 135, is authority that it is not error for the court to permit an attorney in argument to read to the jury what he claims to be extracts from the evidence, made by the stenographer from his shorthand notes. Practically to the same effect as Read v. State, supra, are the following: People v. Greening, 102 Cal. 384, 36 Pac. 665;State v. Henson, 106 Mo. 66, 16 S. W. 285;State v. Costello, 29 Wash. 266, 69 Pac. 1099. However, it is not held by any of said decisions that it is error to refuse to permit such a transcript to be read in argument. As evidence is heard in a cause, it is presumed that its essential features are at that time lodged in the memories of the jurors. When the hearing of evidence has been finally closed, any practice is at least of doubtful propriety the purpose of which is by some subsequent procedure to make a primary impression of the facts in the case upon the minds of the jurors. Thus jurors are not permitted to make notes of the evidence to be taken by them to the jury room and there read (Cheek v. State, 35 Ind. 492); or, except by agreement, to take documentary evidence to the jury room (Nichols v. State, 65 Ind. 512). But as the faculty of memory is double in its nature, consisting of the power to receive, and also to recall, any practice is not only proper, but also commendable, the purpose of which is to enable jurors to recall and recognize that which originally had been impressed on their memories. While by reason of the fact that an official reporter proceeds under oath there may be primarily some presumption respecting the verity of his notes or transcript, such presumption is by no means conclusive. When supported by his sworn preliminary testimony as a witness, such a transcript may, in a proper case, be admitted in evidence, but when used on appeal, it obtains its verity from the judge's certificate to the bill of exceptions containing the transcript, rather than from any certificates or affidavit made by the stenographer. To permit the use of such transcript in argument, under the circumstances presented here, for the purpose of making an original impression on the minds of the jurors, would be highly improper. It would be just as improper, if such should be the effect of its use regardless of...