Bixby v. Omaha & Council Bluffs Railway & Bridge Co.

• Citation: 75 N.W. 182,105 Iowa 293
• Parties: J. E. BIXBY v. THE OMAHA & COUNCIL BLUFFS RAILWAY AND BRIDGE COMPANY, Appellant
• Decision Date: 10 May 1898
• Court: United States State Supreme Court of Iowa

75 N.W. 182

105 Iowa 293

J. E. BIXBY v. THE OMAHA & COUNCIL BLUFFS RAILWAY AND BRIDGE COMPANY, Appellant

Supreme Court of Iowa, Des Moines

May 10, 1898

Appeal from Pottawattamie District Court.--HON. N.W. MACY, Judge.

ACTION for damages occasioned by the negligence of defendant. Trial to jury, verdict and judgment for plaintiff, and defendant appeals.

Reversed.

Wright & Baldwin for appellant.

Harl & McCabe for appellee.

OPINION

LADD, J.

This is action is brought for injuries sustained by the plaintiff in a collision between a street car of the defendant and a train on the Chicago, Burlington & Quincy Railroad. The liability of the defendant appears to have been conceded at the trial and the extent of the injury and the amount to be allowed as damages were the only questions in controversy. There was some contusion of the skin and bruises, but these soon disappeared, and at the time of the trial, there was no objective or external evidence of any injury. The theory of the plaintiff was that he had received a serious shock to his nervous system, and had symptoms indicating locomotar ataxia or some neurotic trouble. Dr. Barstow testified to such symptoms, while Drs. Jennings, Lacey, and Thomas insisted that there existed no signs of any disease. The plaintiff was permitted, over the objection of the defendant, to read in evidence extracts from "Pepper's System of Medicine," Vol. 5, under the heads "Tabes Dorsalis, Locomotor Ataxia," "Morbid Anatomy," and "Physiology" from a work by Dr Ranney, under the heads "Nerve Cells and Nerve Fibers,' "Spinal Neurasthenia"; from a work by Dr. Hirt, entitled "Diseases of the General Nervous System," under the heads "Functional Neurosis," "Diseases of the Pneumogastric Nerve," and "Affections of the Air Passage Due to the Lesions of the Vagus"; also extracts from a lecture by S. Weir Mitchell on "Permanent Headache"; and from a lecture by Dr. H. B. Wood on "The Remote Effects of Traumatism, as Seen by the Neurologist." These works were admitted to be standard, but had not been quoted or cited as authorities by the physicians in giving their testimony. The portions read to the jury treated of the symptoms, and not the cure, of diseases, and might be fairly well understood by those somewhat acquainted with the nomenclature of the medical profession. These extracts cover twenty-four pages of the abstract, and it is impractical to set them out. While they might aid the educated physician to a better understanding of the matters discussed, we are satisfied their tendency was to mislead and confuse the jury. A person of ordinary comprehension could not understand much of the language used, and would be in great danger of being misled by the grouping of symptoms. The learning of these works, if extracted by a skilled physician and applied to the particular case, and thus brought within the comprehension of the jurors, would doubtless have been of great assistance in ascertaining the true condition of the plaintiff. But as they assume a technical knowledge on the part of the reader, and capacity to understand the relative importance to be attached to symptoms, we think they could not be safely left to their interpretation and inferences. As said by Chief Justice Shaw in Ashworth v. Kittridge, 66 Mass. 193, 12 Cush. 193 (59 Am. Dec. 178): "Medical science has its own nomenclature, its technical terms and words of art, and also common words used in a peculiar manner, distinct from their received meaning in the general use of the language. From these and other causes, a person not versed in medical literature, though having a good knowledge of the English language, would be in danger, without an interpreter, of misapprehending the true meaning of the author; whereas, a medical witness would not only give the fact of his opinion and the grounds on which it is formed, with the sanction of his oath, but would also state and explain it in the language intelligible to men of common experience." The question is not whether the courts will use the helps of science in the investigation of truth. There is no controversy on that score. The authorities are agreed that the truths of the exact sciences, the established facts of history, and computations from fixed data may be proven by the works of reputable authors. Worden v. Railway Co., 76 Iowa 310; Gorman v. Railway Co., 78 Iowa 509; Scagel v. Railway Co., 83 Iowa 380; Schell v. Plumb, 55 N.Y. 592; Mills v. Catlin, 22 Vt. 98. This is on the ground that all men assent to their correctness. But medicine belongs to the class known as inductive sciences. The data is constantly shifting with new discoveries, and the conclusion which may be considered sound to-day is repudiated tomorrow. A medical work may be standard this year and obsolete next. The opinion of the same author changes in the different editions, owing to new discoveries and a better understanding of symptoms. The very best works, aside from observations, are largely made up of the opinions either of the author or of others compiled. It is a well-known fact that physicians after research and investigation often differ radically. It was said in Clark v. State, 12 Ohio 483 (40 Am. Dec. 481), where the sanity of the defendant was involved, that "whenever they have enlisted on the side of either party, or of some favorite theory, and one portion of the profession is placed in array against another, the difficulties mentioned in the passage above quoted are greatly multiplied, and, however honest or renowned for professional character the witnesses may be, such will be the conflict of their testimony, in nine cases out of ten, that it will be utterly unsafe for a jury or court to follow or adopt the conclusions of either side." If those learned in medicine are often unable to determine from the books the nature and extent of injuries and diseases, how shall the laymen be better informed by an examination of them? The situation emphasizes the necessity of cross-examination and the use of an oath, not only that the theory contained in the books may be known and understood, but that practical skill may apply the science of medicine to each case. As said, not the use of the inductive sciences in the investigation of truths, but the manner--the vehicle, as it were--by which the results of research shall be conveyed to the court and jury is involved. We think the safer practice is to rely upon the testimony of living witnesses of the medical profession, who may bring the learning and research of the books within the comprehension of the jurors, and the truths of science to the facts in each particular case. Indeed, the advocates of a contrary rule generally admit the necessity of additional safeguards, which may only be provided by legislation. See article by John Henry Wigmore in 26 American Law Review, 390. The language of the supreme court of Michigan in People v. Hall, 48 Mich. 482 (12 N.W. 665), is so pertinent that we quote it with approval: "Scientific or expert testimony must be given by living witnesses who can be cross-examined concerning their means of knowledge, and can explain in language open to general comprehension what is necessary for the jury to know. The only legal reason for allowing the evidence of opinions is found in the presumption that an ordinary juryman or other person without special knowledge could not understand the bearing of facts that need interpretation. Medical books are not addressed to common readers, but require particular knowledge to understand them. Every one knows the inability of ordinary persons to understand or discriminate between symptoms or groups of symptoms, which cannot always be described to those who have not seen them, and which, with slight changes and combinations, mean something very different from what they mean in other cases. The cases must be very rare in which any but an educated physician could understand detached passages at all, or know how much credit was due to either the author in general or to particular parts of his book. If jurors could be safely trusted with the interpretation of such books, it is hard to see on what principles witnesses would be required. Scientific men are supposed to be able, by their study and experience, to give the general results accepted by the scientific world, and the extent of their knowledge is tested by their personal examination. But the continued changes of view brought about by new discoveries in most matters of science, and the necessary assumptions by scientific writers of some technical knowledge in their readers, render the use of such works before juries--especially in detached portions and selected passages--not only misleading, but dangerous. The weight of authority, as well as of reason, is against their reception." The exclusion of such evidence is approved on substantially the same grounds by the following among many authorities:...