Ferebee v. Norfolk-Southern R. Co.

Decision Date11 November 1914
Docket Number247.
CourtNorth Carolina Supreme Court

Appeal from Superior Court, Wake County; Cooke, Judge.

Action by Walter G. Ferebee against the Norfolk-Southern Railroad Company, for personal injuries. From a judgment for plaintiff, defendant appeals. Affirmed.

The charge as to the effect to be given to plaintiff's testimony held proper.

R. N Simms, of Raleigh, for appellant.

Douglass & Douglass, of Raleigh, for appellee.


This case was before us in 163 N.C. 351, 79 S.E. 685, when we directed a partial new trial restricted to the single issue of damages.

The first and second exceptions, because the trial judge submitted no other issue, need not be considered.

The third and fourth exceptions are that Dr. Richardson, who had qualified as an expert, was permitted to testify, while the plaintiff was being examined and exhibited to the jury:

"This place up here (indicating) on the neck is the most serious injury of the two, and apparently has been produced by some force coming from a point above this place of injury carrying the head and upper part of the spine forward. I state that for the reason that the neck here * * *."

The witness then proceeded to testify without objection:

"My reason for stating that the conditions of this kind may be brought about for two causes: One of them is accidents or injuries in which force produces them, and the other is diseased conditions. Diseased conditions of the spine will frequently, and often do, produce deformities which resemble these in some particulars." Page 23 of the record.

It has always been held competent for experts to testify as to the character and extent, and to give their opinion as to the producing causes, of wounds, whether or not they were gunshot wounds or produced by sharp or blunt instruments, and to give their opinions generally as to the causes and effects of injuries. The doctor was not giving his opinion as to the manner in which the plaintiff received the injury or as to when or where it was received. Other witnesses testified as to those facts.

The objection of the defendant that the doctor was an osteopath cannot be sustained. The court having found he was an expert, to what school of medical thought and practice the expert belonged is as irrelevant as what church or political party he was affiliated with.

Exception 5, that the plaintiff testified as to his prospects of promotion, cannot be sustained. The witness said that when he was a brakeman he got from $40 to $48; when he was a flagman that he got $55 and $60; and when he was injured he was getting from $84 to $87 per month. In response to the question, "How long did you get as much as $80?" he replied, "I had been in line for the extra baggage two or three months." This meant, of course, that he had been extra baggagemaster for that length of time. Besides, upon objection the plaintiff withdrew the question, and, to the inquiry how long he had been drawing $80 per month, the witness replied, "Two or three months."

The sixth and seventh exceptions do not require discussion. The plaintiff was a baggagemaster, but it has no bearing upon this injury to show that he was not in the car at the moment of the injury.

The eighth exception is based upon the ground that the court did not permit the defendant to prove its printed rules by oral testimony of the plaintiff on cross-examination and is untenable.

The ninth exception is that the court permitted the plaintiff to ask the defendant's witness Dr. Moore, "Do you want to leave the jury under the impression that the plaintiff is 'faking?' " The manner of the cross-examination is very largely a matter which must be left to the sound judgment and discretion of the learned and impartial trial judges, and this court will not interfere, except in case of palpable abuse or of injury done appellant, which does not appear to be the case in this instance. The witness was not treated with indignity, nor do we see that the defendant could be prejudiced, by asking the witness if he intended to disparage the plaintiff.

Exception 10. Dr. Spillman, who had treated the plaintiff and testified as to the amputation of his arm, was permitted to state that:

"In his opinion the effect of the pain upon the general nervous system was that the patient gets nervous, can't sleep, and begins to go to pieces all over."

Exception 11. Dr. Graves was permitted to testify:

"Upon examination I found Mr. Ferebee run down and weak, with a rather troubled expression, both indicating sorrow and suffering."

These witnesses were medical practitioners, found to be experts by the court, and we cannot see that this evidence was in any way prejudicial to defendant.

Exception 12. Dr. R. L. Payne, who was admitted as an expert, testified that there were "improved methods in general use in the medical profession for the purpose of examining and demonstrating the sensations or lack of sensations in the patients"; and he added that the method used by Dr. Glascock (also an expert witness) was not according to the improved method. The court refused to permit this witness to state whether or not a person could pass through such an examination as Dr. Glascock had exhibited and yet have sensation. We suppose that this exclusion was upon the ground that the witness had already testified fully and had virtually told the jury that the test made by Dr. Glascock had amounted to nothing, and a further pursuit of this subject was simply repetition calculated to give the jury no additional light upon the issue before them.

The statement of the witness that he believed the defendant's witness Sawyer had feeling towards him is the thirteenth exception. We cannot see that it was in any way prejudicial. At most it was irrelevant.

The fourteenth exception was that the plaintiff testified that two nurses in the Norfolk Hospital, who attended him after his injuries, were then in court under subp na by the defendant. This was to show why the plaintiff had not subp naed them, and that the defendant, having had an opportunity, did not put them on the stand.

The fifteenth and sixteenth exceptions for refusal to instruct the jury, as prayed, "to consider the conduct of the plaintiff at the time of his injury" was properly refused, because on the former trial the jury had responded "No" to the third issue, "Did the plaintiff by his own negligence contribute to his injury as alleged in the answer?" To permit that injury to be again considered in this trial, in reduction of damages, would be to try again that question when the sole issue submitted in the new trial granted by the court was as to "the damages sustained by the plaintiff by reason of the negligence of the defendant." The jury having already found on the former trial that there had been no contributory negligence, and this having been affirmed by this court on appeal, the jury could not consider again the matter of contributory negligence in reduction of the damages. The former verdict had established that the plaintiff had been injured by the negligence of the defendant, and that he had not contributed to that injury, and the sole issue submitted to the jury under the direction of this court was therefore as to the amount of the damages.

The court modified the prayer:

"The ability of the defendant to pay damages is a matter which cannot properly be considered by you in answering the issue."

The court modified the charge by inserting the word "large" before the word "damages." We do not think that this, if error, was substantial enough to warrant a new trial, which is the sole object of taking an exception. That was the seventeenth exception.

Neither can we sustain the eighteenth, which was to the refusal of the court to instruct the jury that:

"The medical experts who testified for the plaintiffs were naturally inclined to view the circumstances that make for the plaintiff's side in a favorable light and contrary circumstances in an unfavorable light."

This would have been to express an opinion upon the weight of the evidence. The nineteenth cannot avail, for the instructions asked were substantially given.

The defendant requested the court to charge that the plaintiff, "as a party to this action, has an interest in the outcome of such a character that it is your duty to scrutinize his evidence with care and to give due consideration to the fact that he is interested." The court gave this, but added the following:

"That is the extent of your consideration, and I do this because the Supreme Court has held that it must be done. But after you have done so, and you shall conclude that he told the truth, you will give the same weight to the evidence that you would to that of any other creditable witness."

We cannot, in view of the previous decisions of the court, say that it was error in his honor to make such addition to the prayer. In Herndon v. Railroad, 162 N.C. 317, 78 S.E. 287, the matter is fully discussed, and many of the previous rulings of this court cited in the opinion of the court and in the dissenting opinion in that case.

In that case Judge Justice charged the jury upon the weight to be given to the testimony of parties and witnesses as follows:

"Weigh all this evidence, gentlemen, in every way, and in weighing it you have a right to take into consideration the interest that the parties have in the result of your verdict, the conduct of the witnesses upon the stand, and their demeanor, the interest that they may have shown, or bias, upon the stand, the means they have of knowing that to which they testify, their character and reputation in weighing this testimony, so as to arrive at the truth of what this

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