Allen v. Durham Traction Co

• Decision Date: 09 April 1907
• Citation: 56 S.E. 942,144 N.C. 288
• Parties: ALLEN et al. v. DURHAM TRACTION CO.
• Court: North Carolina Supreme Court

144 N.C. 288

56 S.E. 942

ALLEN et al.

v.DURHAM TRACTION CO.

Supreme Court of North Carolina.

April 9, 1907.

1. Appeal—Review—Questions of Pact— Opinion Evidence — Determining Question of Expert's Competency.

Where the court has found upon the evidence that a witness is qualified to testify as an expert, its conclusion is not reviewable.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 3852; vol. 20, Evidence, § 2363.]

2. Damages — Subject of Compensation — Medical Treatment.

In assessing damages in an action for personal injuries, where the plaintiff has paid a physician for his services, the jury may take their value into consideration if they were reasonably proper attention under the circumstances.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 15, Damages, §§ 243, 251.]

3. Trial—Instructions—Issues of Case.

In an action for injuries caused by alighting from a street car, where there was evidence on both sides of the question whether plaintiff alighted while the car was moving, the defendant was entitled to have its phase of the evidence submitted to the jury with the legal effect of the facts, if found, as his evidence tended to prove them.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 46, Trial, 8§ 478, 479.]

Appeal from Superior Court, Durham County; Justice, Judge.

Action by J. H. Allen and others against the Durham Traction Company. From a judgment for plaintiffs, defendant appeals. Reversed and remanded.

Manning & Foushee and A. L. Brooks, for appellant.

Winston & Bryant Kitchin & Carlton, for appellees.

CLARK, C. J. Action for personal Injuries sustained by feme plaintiff in alighting from a car of the defendant street railway company. A separate action was brought by her husband for his loss and expenditures caused by such injuries. By consent, the two causes of action were consolidated and tried together.

The defendant's first three exceptions are on the ground that the court permitted Dr. A. R. Tucker, an osteopath, to testify as an expert in regard to the nature of the fractures of the bones of the feme plaintiff, and to testify as to the amount paid him for his services to her, in considering the quantum of damages. The court found upon the evidence that Dr. Tucker was an expert. This conclusion Is not reviewable. State v. Wilcox, 132 N. C. 1131, 44 S. E. 625; Geer v. Water Co., 127 N. C. 355, 37 S. E. 474, and cases there cited. The court decides as to the admissibility of the witness as an expert; the Jury decides as to the weight to be given to his testimony. Flynt v. Bodenhamer, 80 N. C. 207. The amount paid him for his services Is, of course, not binding on the jury, but they can take into consideration the reasonable worth of the attention and nursing rendered by him in passing upon the measure of damages. Even if It had been true that Dr. Tucker could not, under Revisal 1905, § 4502, have recovered for his services to the feme plaintiff in an action at law, this is not an action by him to recover compensation. His services were not criminal (State v. Biggs, 133 N. C. 729, 46 S. E. 401, 64 L. R. A. 139, 98 Am. St. Rep. 731), and, the plaintiff having paid him for his services, if they were reasonably proper attention under the circumstances, the jury could take their value into consideration. Laws 1907, c.——, has incorporated the "North Carolina Society of Osteopaths" as a recognized branch of healing; but aside from that, if Dr. Tucker's services had been availed of to alleviate pain or in nursing, the reasonable amount paid for such services was a matter for consideration by the jury. If, in a case like this, a bill for medical services were barred by the statute of limitations, Its payment could not be enforced at...