C., N.O. & T.P.R. Co. v. Ross

• Court: Supreme Court of Kentucky
• Writing for the Court: Turner, Commissioner
• Citation: C., N.O. & T.P.R. Co. v. Ross, 219 Ky. 824, 294 S.W. 460 (Ky. 1927)
• Decision Date: 13 May 1927
• Parties: Cincinnati, New Orleans & Texas Pacific Railroad Company v. Ross. Ross v. Jones.

Page 824

219 Ky. 824

Cincinnati, New Orleans & Texas Pacific Railroad Company v. Ross.

Ross v. Jones.

Court of Appeals of Kentucky.

Decided May 13, 1927.

1. Damages. — Verdict of $12,000 for personal injury, from which traumatic neurasthenia was claimed to have resulted, held excessive, in view of unsatisfactory evidence of permanency.

2. Evidence. — Physician's evidence, in personal injury action, that government physicians now consider traumatic neurasthenia an incurable disease, was hearsay, and should have been rejected.

3. Evidence. — Opinion of nonexpert as to plaintiff's nervousness, and as to whether plaintiff's physical condition was such that he could do any labor, held improperly admitted.

4. Evidence. — Testimony, in personal injury action, as to plaintiff's complaints regarding his head and neck, and similar expressions concerning his condition after accident, made to witness who was not physician, held incompetent as of self-serving nature.

Appeals from Pulaski Circuit Court.

MAURICE L. GALVIN, EDWARD COLSTON and WILLIAM WADDLE for appellant.

WILLAM M. CATRON and JOHN W. COLYAR for appellee.

OPINION OF THE COURT BY TURNER, COMMISSIONER.

Reversing on the first appeal and affirming on the second.

The first-named appeal is one by the railroad company seeking to reverse a judgment for $12,000 entered against it in an action by Ross for personal injuries. The second-named appeal is one by the plaintiff, Ross, seeking to reverse a judgment entered on a verdict wherein his action was dismissed against the appellee Jones, who was a joint defendant with the railroad company.

On the first trial a verdict was returned and judgment entered against the two defendants jointly for $10,000, but upon the last trial there was a finding of $12,000 against the railroad company, and nothing against Jones.

Upon the first appeal the judgment was reversed, primarily for the reason that it was "flagrantly excessive" in amount, although one other error was pointed out. 212 Ky. 619, 279 S.W. 1076.

That opinion goes into the details of the evidence, and reaches the conclusion that there was no such satisfactory evidence of permanent injury as to justify the $10,000 verdict.

On the last trial there was no material change in the evidence as to the nature or extent of appellee's injuries, except that one physician, who testified on both trials for the plaintiff, upon the last trial modified his testimony given on the first, and now states, in substance, that persons suffering from traumatic neurasthenia rarely ever recover, and that that is the modern view of physicians as he now understands it. He undertakes to base that change in his opinion upon the assertion that government physicians now hold that traumatic neurasthenia is an incurable disease, and that his own opinion is correspondingly changed. He refers to no text-book, nor to any other medical authority, but bases his change of view and his present opinion wholly upon the assertion that government physicians now consider traumatic neurasthenia an incurable disease.

On the last trial plaintiff introduced as an expert Dr. W.L. Heiser, who had not been introduced on the former trial. His testimony in effect is that about six months before the last trial appellee came to him, and that, after receiving from him a history of the case, he made a thorough...