Carlburg v. Wesley Hospital and Nurse Training School

• Decision Date: 07 April 1958
• Docket Number: No. 40883,40883
• Citation: 182 Kan. 634,323 P.2d 638
• Parties: Roy H. CARLBURG, Appellee, v. The WESLEY HOSPITAL AND NURSE TRAINING SCHOOL, Appellant.
• Court: Kansas Supreme Court

Page 638

323 P.2d 638

182 Kan. 634

Roy H. CARLBURG, Appellee, v. The WESLEY HOSPITAL AND NURSE TRAINING SCHOOL, Appellant.

No. 40883.

Supreme Court of Kansas.

April 7, 1958.

Rehearing Denied May 9, 1958.

Syllabus by the Court

1. The record examined in an appeal from a judgment in a personal injury case, and held, the court did not err: (1) in overruling the defendant's demurrer to the plaintiff's evidence; (2) in excluding a hypothetical question; (3) in giving its instructions and failing to give instructions requested by the defendant; and (4) in overruling the motion for new trial and approving the verdict.

2. In a demurrer to the evidence this court is called upon to review only the sufficiency of the evidence and not to weigh it for the purpose of rendering a decision on the merits of the action, and this same duty is incumbent of the trial court. In testing the sufficiency of evidence as against a demurrer, the court shall consider all of the evidence as true, shall consider that favorable, together with all reasonable inferences to be drawn therefrom, and disregard that unfavorable, and shall not weigh any part that is contradictory, nor weigh any difference between direct and cross-examination, and give the evidence a liberal construction resolving all doubt against the party making the demurrer and, if so considered, there is any evidence which supports or tends to support the case on any theory, the demurrer shall be overruled.

3. The general rule is that hypothetical questions may be asked only of expert witnesses. Nonexperts may not testify as to their conclusions or opinions, either generally or on the basis of an assumed set of facts.

4. As a general rule the possession of special and peculiar experience in relation to the subject matter must be expressly shown to qualify the witness as an expert.

5. Generally speaking, when an accident is caused by negligence there is no room for application of the doctrine of 'unavoidable accident', even though the accident may have been 'inevitable' or 'unavoidable' at the time of its occurrence, and one is not entitled to the protection of the doctrine if his negligence has created, brought about, or failed to remedy a dangerous condition resulting in a situation where the accident is thus 'inevitable' or 'unavoidable' at the time of its occurrence. In other words, a person is liable for the combined consequences of an 'inevitable' or 'unavoidable' accident and his own negligence. Following Knox v. Barnard, 181 Kan. 943, 317 P.2d 452.

William Tinker and Hugh P. Quinn, Wichita, argued the cause and Getto McDonald, Arthur W. Skaer, Jr., William Porter, John E. Lancelot, and Alvin D. Herrington, all of Wichita, were with them on the briefs for appellant.

John C. Frank, Wichita, argued the cause and Robert L. Morrison, Robert S. Lomax, and Fred J. Gasser, Wichita, were with him on the briefs for appellee.

HALL, Justice.

This is an appeal from a judgment in a personal injury case.

The appellee, Roy H. Carlburg, sued the appellant, the Wesley Hospital and Nurse Training School, for damages for personal injuries sustained by him while a patient in the hospital.

Carlburg was a patient in the hospital for a series of operations. After the second operation and while still under the influence of an anesthetic, Carlburg was moved from the recovery room to a room which he was to occupy as a patient. Shortly afterward he fell out of bed sustaining severe injuries.

In his petition he alleged that the hospital, its employees and attending nurses, neglected to place the side boards on the bed in an upright position to protect and prevent him from falling out of bed.

The case was tried to a jury which returned a verdict of $41,259.17 in favor of Carlburg.

Appellant makes six specifications of error:

'1. The trial court erred in overruling the defendant's demurrer to the plaintiff's evidence. * * *

'2. The trial court erred in restricting the cross-examination of plaintiff's witnesses and its ruling on hypothetical questions.

'3. The trial court erred in giving Instruction No. 7 over the recorded objection of the defendant.

'4. The trial court erred in its failure to give defendant's requested Instruction No. 1, No. 2, No. 3, No. 5, and No. 6 over the recorded objection of the defendant to the court's failure to give those requested instructions.

'5. The trial court erred in overruling the defendant's motion for a new trial.

'6. The trial court erred in entering judgment for the plaintiff and against the defendant absent approval of the jury's verdict.'

In a demurrer to the evidence this court is called upon to review only the sufficiency of the evidence and not to weigh it for the purpose of rendering a decision on the merits of the action, and this same duty is incumbent on the trial court. In testing the sufficiency of evidence as against a demurrer, the court shall consider all of the evidence as true, shall consider that favorable, together with all reasonable inferences to be drawn therefrom, and disregard that unfavorable, and shall not weigh any part that is contradictory, nor weigh any difference between direct and cross-examination, and give the evidence a liberal construction resolving all doubt against the party making the demurrer and, if so considered, there is any evidence which supports or tends to support the case on any theory, the demurrer shall be overruled. Kendrick v. Atchison, T. & S. F. R. Co., 182 Kan. 249, 320 P.2d 1061, and authorities cited therein.

We have examined the record within the limitations of this rule. The trial court did not err in overruling appellant's demurrer to the evidence.

Appellant contends the trial court restricted its cross-examination of appellee's witnesses and erred in its ruling on hypothetical questions.

Appellee called Collis Graber as a witness. On direct examination it was established that she was a registered nurse who was on private duty near the room to which appellee had been removed from the recovery room, and had found him lying on the floor after he had fallen from bed. The witness declared that it was only recently that recovery or wake-up rooms had been used. No attempt was made to determine whether she knew of recovery room procedure or whether she in fact had any experience with it. On cross-examination appellant propounded a hypothetical question on whether, on an assumed set of facts, it was good medical care to let appellee go from the recovery room. Counsel for appellee objected and the court sustained the objection on the ground that the facts of the question were not in evidence.

Appellant contends that the court erred in its ruling in that on cross-examination hypothetical questions asked of expert witnesses need not be limited to the testimony in the case but may be based on conjectural facts, citing Jones on Evidence, 4th Ed., Volume 2, § 389, pp. 734-735; Levine v. Barry, 114 Wash. 623, 195 P. 1003; Rogers on Expert Testimony, 2d Ed., § 33, p. 79; Proechel v. United States, 8 Cir., 59 F.2d 648; Fort Worth & Denver R. Co. v. Janski, 5 Cir., 223 F.2d 704; Polley v. Kansas City Oil Co., 89 Kan. 272, 131 P. 577; Order of United Commercial Travelers of America v. Barnes, 75 Kan. 720, 90 P. 293; Bever v. Spangler and Blake, 93 Iowa 576, 61 N.W. 1072; Telegraph Co. v. Morris, 67 Kan. 410, 73 P. 108; Roark v. Greeno, 61 Kan. 299, 59 P. 655; Eames v. Clark, 104 Kan. 65, 177 P. 540; Cooper v. Helmerich & Payne, 162 Kan. 547, 178 P.2d 242.

We do not question the rules of law stated by these authorities but we cannot agree that they are applicable here. It is clear to us that hypothetical questions may be asked only of expert witnesses; that nonexperts may not testify as to their conclusions or opinions, either generally or on the basis of an assumed set of facts. This rule follows from the principle that the opinion of a nonexpert is unnecessary since the jury possesses the same skill as he in drawing inferences from the circumstances. Miller v. National Council of Knights and Ladies of Security, 103 Kan. 579, 175 P. 397; Augusta Oil, Gas, Mining & Prospecting Co. v. Independence Drilling Co., 80 Kan. 261, 101 P. 1072; Tefft v. Wilcox, 6 Kan. 46, 2nd Ed. p. 33; 2 Wigmore, Evidence § 679, 3d Ed., 1940.

Here the witness was not qualified as an expert and there is nothing in the record to indicate she was so considered by the court. As a general rule the possession of special and peculiar experience in relation to the subject matter must be expressly shown to qualify the witness as an expert. Denver v. Atchison, T. & S. F. R. Co., 96 Kan. 154, 150 P. 562: Atchison T. & S. F. R. Co. v. Sage, 49 Kan. 524, 31 P. 140. Here no testimony was offered of any occupational experience or systematic training of the witness which would make her opinion on recovery room procedure of any value. Indeed no attempt was made to show that the witness had any personal experience with the methods of recovery room treatment.

Since the witness was not qualified as an expert it was improper to propound a hypothetical question to her and the court's ruling in sustaining the objection to the question was correct.

Appellant also maintains that the trial court unduly restricted his cross-examination of other...