Foose v. The Hawley Corp.., (No. 8734)

• Decision Date: 28 June 1938
• Docket Number: (No. 8734)
• Citation: 120 W.Va. 334
• Court: West Virginia Supreme Court
• Parties: Raymond A. Foose v. The Hawley Corporation et al.

120 W.Va. 334

Raymond A. Foose

v.The Hawley Corporation et al.

(No. 8734)

Supreme Court of Appeals of West Virginia.

Submitted April 19, 1938.

Decided June 28, 1938.

Evidence

Respecting a physical injury of which a person is suffering, a physician, grounding his testimony on direct information or a proper hypothetical question, may give in evidence his opinion of the cause of which the injury is the resultant.

Error from Circuit Court, Ohio County.

Action by Raymond A. Foose against the Hawley Corporation and others for injuries allegedly sustained by the plaintiff because of an accident which occurred in a passenger elevator owned and operated by the named defendant. To review a judgment in favor of the plaintiff, the defendants bring error.

Affirmed.

Tom B. Foulk, for plaintiffs in error.

Hall, Goodwin & Paull, for defendant in error.

Maxwell, President:

This is a writ of error to a judgment, based on verdict; for $900.00.

The plaintiff alleged in his declaration and offered evidence tending to prove that a left inguinal hernia of which he is suffering is the result of a mishap which occurred May 28, 1935, in a passenger elevator owned and operated by the defendant, The Hawley Corporation, in its large office building in the City of Wheeling. The Otis Elevator Company was originally a party defendant to the action, but the trial court dismissed that company, on its motion, from the proceeding.

At the time of the mishap, the plaintiff, bound for the tenth floor of the Hawley Building, was the sole passenger in the elevator, the same being in the control of an operator therein. The operator tried to stop the elevator at the tenth floor, but for some unknown reason, it traveled several feet higher and the top of the car bumped into a temporary wooden platform which had been constructed over the top of the elevator shaft for use while certain work was being done preparatory to the installation of new elevators, there being two of them. When the car stopped upon colliding with the boards, the plaintiff proposed to climb out of the car upon the roof of the building, but the operator did not approve that suggestion and immediately lowered the car as far as he could. When the car stopped in its short descent, the bottom of it was about two and one-half feet above the floor of the tenth story of the building. Further descent by the elevator could not be made because the top ends of the guide rails for the car had been cut off and the car became hooked or lodged on the tops of the shortened rails. The doors were then opened and the plaintiff, with the assistance of the operator of the car and of some persons who were on the tenth floor, got out of the car feet first, face up.

The plaintiff felt no bad effects from the occurrence that evening, nor, in fact, did he consider that there were such effects until about two weeks later when, while engaged in some light work in his lawn, he experienced a sensation of discomfort which indicated to him that probably he had developed a hernia. His immediate ex- amination of himself disclosed a slight protrusion in the left groin. Physicians pronounced the protuberance an inguinal hernia. Plaintiff alleges that the brakes and stopping device of the car were defective, and that in such circumstances, it was negligence for the defendant to permit the car to be operated; further, that it was negligence for the defendant to permit the guide rails of the car to be shortened. Two physicians were witnesses for the plaintiff respecting the probable effects of the accident. The first one testified from information gained from a personal examination of the plaintiff and from the history which the latter gave the physician. This witness, in reply to a question whether in his opinion the elevator accident had anything to do with the hernia, answered: "In my opinion it probably in all probability was the exciting cause of the hernia." The other medical witness for the plaintiff had not examined him, but in answer to a hypothetical question wherein were set forth the facts of the accident, and his opinion elicited whether the elevator incident had anything to do with the hernia, said: "I think that it is quite possible that the accident was the cause of the hernia." And further, on crossexamination, respecting the...