City of Jackson v. Boone

• Decision Date: 02 April 1894
• Citation: 20 S.E. 46,93 Ga. 662
• Parties: MAYOR, ETC., OF JACKSON v. BOONE.
• Court: Georgia Supreme Court

20 S.E. 46

93 Ga. 662

MAYOR, ETC., OF JACKSON v. BOONE.

Supreme Court of Georgia

April 2, 1894

Syllabus by the Court.

1. It was competent for a medical expert to testify that, in his opinion, a given disease "may be cured by a surgical operation, but it is very rarely the case that this can be done," though the witness further testified he had no experience in treating that disease, but derived all his knowledge on the subject from reading medical authorities.

2. Where, in consequence of the falling in of a gate forming a part of a railing protecting an excavation in and along the margin of a public sidewalk in a town, the excavation being used to afford access to a private cellar, the plaintiff was precipitated into the excavation and injured, there was no error in declining to charge the jury that, if the plaintiff intenationally leaned upon the gate, he could not recover from the municipal corporation, or in instructing the jury that it was a question for them whether or not, under all the circumstances, the plaintiff was making a proper and legitimate use of the gate in question.

3. It appearing by undisputed evidence that, at the instance of the municipal authorities, the gate had been made secure two days before the plaintiff was injured, and that it was safe on the evening before the injury occurred, and there being no evidence tending to show that these authorities had ascertained, or by ordinary care might have ascertained, that it had become insecure at the time of the injury, the plaintiff was not entitled to a verdict against the municipal corporation, and it was error to refuse a new trial.

Error from superior court, Butts county; J. J. Hunt, Judge.

Action by J. F. Boone against the mayor and city council of the city of Jackson, Ga., for personal injuries caused by defendant's negligence. There was a judgment for plaintiff, and defendant brings error. Reversed.

W. W Anderson, for plaintiff in error.

Hall & Hammond, Wright & Beck, and J. S. Boynton, for defendant in error.

LUMPKIN J.

1. One ground of the motion for a new trial assigned error upon admitting in evidence the testimony of a practicing physician "that the disease of varicocele may be cured by a surgical operation, but it is very rarely the case that this can be done," the physician further stating that he had never had any medical experience in treating this disease and derived all the knowledge he had upon the subject from reading medical authorities. Taking, as a whole, the testimony of the witness as it appears in the brief of evidence, it amounted simply to a statement by him that, in his opinion, the disease in the question could, in rare instances only, be cured by a surgical operation, and that this opinion was based entirely upon his reading medical works recognized as authorities. We think the evidence was properly received. The opinion of an expert as to what conclusions may be properly drawn from statements in scientific works pertaining to his profession amounts to something more than mere hearsay, and may be very valuable in elucidating a given scientific inquiry. An opinion thus formed and given to the jury in quite a different thing from reading to them mere extracts from the books themselves. The latter might not be intelligible to the nonprofessional mind while the opinion of an expert, expressed in language adapted to their comprehension, might be easily understood by the jury, and is, moreover, not only the result of study and deliberation, but an exercise by the witness himself of his own trained mental faculties upon the question involved. The doctrine is thus broadly stated in Lawson on Expert and Opinion Evidence (pages 176, 177): "An expert may testify to an opinion of his own derived from books,"--and the authorities there cited seem to sustain the text. We find the following pertinent note at the bottom of the latter page: "Said Dr. Crell, on the trial of Spencer Cowper, in answer to an objection by the court 'My lord, it must be by reading, as well as a man's own experience, that will make any one a physician, for, without the reading of books in the art, the art itself cannot be attained to. I humbly conceive that in such a difficult case as this we ought to have a great deference for the reports and opinions of learned men; neither do I see any reason why I should not quote the fathers of my profession in this case, as well as you gentlemen of the long robe quote Coke upon Littleton in yours;' and upon this answer the doctor was permitted to proceed with the quotation. Beck, Med. Jur. 918, 919, and notes." See, also, as somewhat pertinent, Central Railroad...