Abbot v. Heath

• Decision Date: 21 February 1893
• Citation: 84 Wis. 314,54 N.W. 574
• Parties: ABBOT ET AL. v. HEATH.
• Court: Wisconsin Supreme Court

84 Wis. 314

54 N.W. 574

ABBOT ET AL.

v.HEATH.

Supreme Court of Wisconsin.

Feb. 21, 1893.

Error to circuit court, Clark county; A. W. Newman, Judge.

Action for personal injuries by Horace Heath against E. H. Abbot and another, trustees. Plaintiff had judgment, and defendants bring error. Reversed.Howard Morris and T. H. Gill, for plaintiffs in error.

O. H. Fethers and M. G. Jeffris, for defendant in error.

ORTON, J.

This action was brought by the plaintiff, Horace Heath, against the defendants, E. H. Abbot and J. H. Stewart, trustees operating the Wisconsin Central Railroad, to recover damages for his personal injuries received at a railroad crossing in the village of Spencer in February, 1887. The plaintiff was driving a team of two pair of mules, hitched to a sled heavily loaded with timber and lumber, into the village of Spencer, and on Clark street, where it crosses said railroad. His team was nearly or quite over the crossing before he saw the approaching train, and then he jumped off his load, but was struck by the engine, and injured. The first trial of the case took place in June, 1890, and the last trial in December, 1891. The plaintiff was treated for his injuries at the time by one Dr. Adams about 23 days, and was assisted by Dr. Wyatt. The jury found a special verdict that the train was run at a dangerous rate of speed, and that the defendants' employes were not keeping a proper lookout as the train approached the crossing, and that they were the causes of the accident, and that the plaintiff's damages were $4,500. On the trial, one Dr. W. D. Lyman was sworn on behalf of the plaintiff, as an expert medical witness, who testified that he examined the plaintiff twice after the action was brought, and before the first trial, and twice afterwards, and before the last trial, and that he found him suffering from dizziness a great deal. The witness then asked if he should give the objective and subjective symptoms, and explained that by “subjective symptoms” he meant symptoms that are related by the patient, that cannot be observed by the physician, but are learned by questioning the patient. The defendants' counsel thereupon objected to any testimony by the witness detailing subjective symptoms. The objection was overruled, and the defendants excepted.

There was no physician or other person present at his examinations of the plaintiff, who represented the defendants; and the witness made such examinations for the sole purpose of testifying on the trial as a medical expert on behalf of the plaintiff, and not for the purpose of treating him as a patient. His further testimony, to a certain extent, was as follows: “He found him suffering a great deal from dizziness. Was unable to read or use his eyesight constantly without occasioning dizziness, and a tired feeling at the head. Was unable to move his left limb as far back as the right, and other motions and voluntary rotations of the limb were impaired. The left arm was the stronger. The patient described creeping and prickly sensations in the left leg, and sensations of heat and cold, and that it frequently went to sleep. These are the evidences of an injury to the nerve centers or nerve trunks, and the natural tendency of these symptoms is to increase, and paralysis may or may not follow. The injuries are of a permanent character. If the plaintiff was struck by a train, and injured in the region of the back, as described, and thrown some forty to sixty feet, that injury would fully account for all the conditions described. He made up his mind that the plaintiff has the troubles mentioned, wholly from what he has told him in regard to the symptoms, and the medical knowledge he acquired from reading and practice, and none of it in the treatment of the patient as a physician. The plaintiff, at the examinations, told him how the accident occurred, and in making up his judgment the violence of the injury always enters into the case, and did here. When he made his first examination, he did not know that the plaintiff had been on the stand as a witness. In determining all these results he took into consideration what the plaintiff told him.” When Dr. S. H. Esch was sworn as a medical witness for the plaintiff, the question was again raised as to the competency of his testimony of subjective symptoms, and the same ruling and exceptions were repeated. Dr. Esch testified that “subjective symptoms were what we ask the patient.” He was asked by the counsel of the plaintiff “what he discovered from the subjective symptoms,--that is, what his condition is.” His testimony was in answer to this question, and he said: “He complained of cramps, coldness, and heat at various times; sensations of creeping, crawling, and numbness; headaches, inability to stand exercise or walking any length of time without getting tired. From his condition he did not think he is able to perform a full day's work, nor did he think his condition will be any better than it is now. The probabilities are that the symptoms will increase, and there may possibly be eventually paralysis. The numbness and cold feeling in his right arm show a tendency to a derangement of the nerve centers that supply the arm.” The counsel of the defendants then moved to strike out the testimony of these subjective symptoms, or what the plaintiff told the doctors; and the court overruled the motion, and an exception was taken.

These physicians testified to certain physical defects and organic changes in various parts, which they observed, and which indicated injury by violence at some time, and in some way; but they did not know the cause, except as informed by the plaintiff. The derangement of the nerve centers and spinal diseases, the most occult and unobservable of any symptoms of disease or injury, and the most permanent and incurable, and for which the damages were no doubt assessed by the jury in this case, the physicians did not know, and could not have known, anything about, except from the statements of the plaintiff alone....