Gearhart v. Des Moines RY. Co.

• Decision Date: 05 February 1946
• Docket Number: 46786.
• Citation: 21 N.W.2d 569,237 Iowa 213
• Parties: GEARHART et al. v. DES MOINES RY. CO.
• Court: Iowa Supreme Court

21 N.W.2d 569

237 Iowa 213

GEARHART et al. v. DES MOINES RY. CO.

No. 46786.

Supreme Court of Iowa

February 5, 1946

Havner & Powers, of Des Moines, for appellants.

Bradshaw Fowler, Proctor & Fairgrave, Harold S. Thomas, and R. H Work, all of Des Moines, for appellee.

HALE Justice.

This is an action by Jesse Gearhart and his wife, Lucille Gearhart. The husband assigned his claim for damages to his wife. The action arose out of an injury suffered by Lucille Gearhart on November 6, 1943 between the hours of 9 and 10 p. m. She was a passenger on defendant's curbliner and got off at the southeast corner of Sixth and Euclid Avenue in Des Moines which cross each other at right angles. The curbliner was headed north on Sixth Avenue but its route was west from the intersection on Euclid. When plaintiff left the car at the southeast corner of the intersection the traffic lights to the north were red and she walked across Sixth Avenue to the southwest corner of the intersection. Then when the traffic lights changed for north and south traffic she proceeded north across Euclid Avenue from the southwest corner of the intersection toward the northwest corner following the line of traffic opened by the green light. She claims that she was within 12 or 15 feet of the north curb of Euclid Avenue and in plain view of the driver of the curbliner, who drove the bus in a lefthand turn west on the north side of Euclid Avenue. Plaintiff followed the green light, and, as she asserts, without any knowledge on her part that the curbliner was approaching, was struck by the left front corner of the vehicle, knocked down and dragged on the pavement and severely injured, necessitating confinement in a hospital for three months, surgical operations and care and treatment by a physician after her release from the hospital. She alleges negligence of defendant and lack of contributory negligence on her part. She claims medical expense of $345, hospital expense of $466.25, and injury to clothing of $100, all of which amounts were conceded by defendant to be correct; and $400 expense incurred in providing care for her household and two children while disabled, making a total of $1,311.25. She also asks judgment for damages and expense incurred in the sum of $4,000.

There was denial by defendant and specific denial of negligence and of the claim of lack of contributory negligence by plaintiff. The jury returned a verdict for plaintiff in the amount of $1,311.25. The court at the conclusion of plaintiff's testimony withdrew her plea as to the doctrine of last clear chance and her proffered instructions thereon.

Plaintiff bases her appeal on the following grounds: (1) Failure of the court to admit the hospital records offered in evidence by her; (2) Failure of the court to instruct the jury on the doctrine of last clear chance: (3) Failure of the court to set aside the verdict of the jury and grant a new trial by reason of the inadequacy of the verdict; and (4) That the court was in error in giving certain instructions hereinafter referred to; and (5) That the court was in error in withdrawing Division (e) of Paragraph 12 of the petition. Defendant has appealed on the ground that the trial court was in error in failing to direct a verdict for defendant at the close of plaintiff's testimony and at the close of all the testimony, and failure to sustain defendant's motion for judgment notwithstanding the verdict. The evidence in relation to these assigned errors will be referred to hereafter under separate assignments.

I. Dr. Howard Gray testified as to the extent of plaintiff's injuries. Plaintiff offered also the hospital records and as foundation therefor called Mrs. Mabel Clark, an employee of the hospital, who testified she assisted Sister Mary Louise in her work of keeping the records. She identified the records of the hospital in connection with the case of Lucille Gearhart, including the history on the first sheet, the personal history and physical examination on the next, and the operative sheets and nurses' notes at the back of the record. She testified that the records were made in the usual and ordinary course of business and were part of the records of Mercy Hospital, in Des Moines, and as to the manner in which the chart is ordinarily made up, that it is sent to the floor with the patient, that the record indicates that the physician or interne makes a physical and personal history and signs it, that the records indicate the temperature, pulse and respiration. The witness did not make any part of the records but testified as to the manner in which they were made and that they were made by the nurses and doctors in charge of the patient. A nurse as witness testified as to entries she had made on the record, that they were made at the time of admission of the patient to the hospital, that they were correct and true so far as they relate to facts, and the notations on the front side of the page were the day nurse's notes. The witness identified some of the entries on the sheets as made by other nurses but some she could not identify, and testified that some of the nurses who made the entries could not be produced. On objection the court refused to admit these records in evidence, both as an entirety and as to separate items.

The question, therefore, is: Are the records of a public hospital, duly identified, admissible in evidence to show the condition of the patient as bearing on the amount of pain and suffering? This is a question which has never been ruled on by this court but it has arisen in many jurisdictions and the courts are divided on the question of admissibility.

In 75 A.L.R. 378 in the Annotations to Lund v. Olson, 182 Minn. 204, 234 N.W. 310, the question is fully reviewed and the cases listed which hold both for and against the admissibility of hospital records. The editorial note states: 'There is apparently some conflict among the courts as to whether such evidence is admissible at all; there is even more confusion as to the reason. It is obvious that such evidence can only be admitted under some exception to the hearsay rule, and that the proper foundation must be laid for bringing the case within the particular exception. Nevertheless, in many instances such evidence has been excluded without the court clearly stating whether it was for the lack of a proper foundation, and without intimating whether such evidence is admissible in any event. Consequently, some difficulty has been experienced in grouping the cases from the various jurisdictions under appropriate rules, as well as in reconciling cases from the same jurisdiction. It is believed that in many of the cases where such evidence was excluded, in the absence of some other assigned reason, it was for the reason that a proper foundation had not been laid.'

In 120 A.L.R. 1124, in the annotations to Clayton v. Metropolitan Life Ins. Co., 96 Utah 331, 85 P.2d 819, 120 A.L.R. 1117, additional cases are cited and reviewed. The editor says that the conflict still exists, as does the confusion as to the reason for the admission or exclusion of such evidence. Many of the cases where the question has arisen have occurred in states where hospitals are required by statute to keep records, being considered as public documents. It would require an undue extension of this opinion and be of no value to undertake to review even a part of these conflicting pronouncements of the courts of the various states. The majority rule seems to favor the admission of such records when properly identified and the proper foundation is laid.

If admissible, these records would constitute one of the exceptions to the hearsay rule, such as dying declarations, statements of fact against interest, books of acmount, declarations about family history, etc. It is apparent that hospital records cannot be governed by the same rules or principles as applied to books of account nor admitted under our statute relating to such entries. In Wigmore on Evidence, 3d Ed., Volume VI, Section 1707, p. 36, the author strongly favors admissibility, stating that the medical records of patients at a hospital organized on a modern plan should be placed under the exception to the hearsay rule and should be admissible either on identification of the original by the keeper or offer of the certificate of a sworn copy. He states that the reasons for admissibility of evidence of such exceptions are the necessity and circumstantial guarantee of trustworthiness which are the bases for the admission of all such exceptions. The necessity of admission is that the calling of all the attending physicians and nurses who have cooperated to make the record even of a single patient would be a serious interference with the convenience of hospital management. There is a circumstantial guarantee of trustworthiness 'for the records are made and relied upon in affairs of life and death. Moreover, amidst the day-to-day details of scores of hospital cases, the physicians and nurses can ordinarily recall from actual memory few or none of the specific data entered; they themselves rely upon the record of their own action; hence, to call them to the stand would ordinarily add little or nothing to the information furnished by the record alone. The occasional errors and omissions occurring in the routine work of a large staff are no more an obstacle to the general trustworthiness of such records than are the errors of witnesses on the stand. And the power of the court to summon for examination the members of the recording staff is a sufficient corrective, where it seems to be needed and a bona fide dispute exists.'

In referring to the lack of opportunity for cross examination it is stated that 'common sense and experience have from time to time...