Haase v. Ryan
Decision Date | 20 June 1955 |
Citation | 100 Ohio App. 285,136 N.E.2d 406 |
Parties | , 60 O.O. 251 HAASE, Appellee, v. RYAN, Appellant. |
Court | Ohio Court of Appeals |
Syllabus by the Court
1. A verdict of a jury can not be based upon testimony as to possibilities, as distinguished from probabilities, and the failure of the court to exclude speculative testimony constitutes prejudicial error.
2. In the trial of an action to recover damages for personal injuries, in which the evidence tends to show that the plaintiff probably incurred an intracranial hemorrhage, the admission of testimony relating to possible aftereffects of such an injury, unlikely to happen, constitutes error prejudicial to the defendant.
3. It is prejudicially erroneous in a charge to the jury to state as a fact that which is in dispute.
4. In an action for damages for personal injury brought on behalf of a sevenyear-old child, wherein there is evidence of a permanent facial scar and the loss of two front teeth, admission of the American Experience Table disclosing the life expectancy of such child is not prejudicial.
Charles J. Cole, Toledo, for appellant.
Shumaker, Loop & Kendrick and Robert B. Gosline, Toledo, for appellee.
This is an appeal on questions of law from a judgment in the sum of $20,000 entered on a verdict for plaintiff. Plaintiff, when seven years of age, was injured as a result of a collision with an automobile driven by the defendant in a school zone. With respect to the proximate cause of plaintiff's injury and the liability of the defendant, we find no error prejudicial to the defendant.
There is substantial evidence that as a result of the collision, plaintiff suffered two linear fractures of the skull without displacement, laceration of his left upper jaw extending into the hard palate (diagnosed as a fracture of the left upper jaw), loss of two permanent teeth and baby teeth on the left side of his upper jaw, and a three-centimeter laceration at the left side of his mouth, leaving a permanent scar. There is also credible, but disputed, evidence that he suffered an intracranial hemorrhage. Plaintiff remained in a semicomatose condition for about three days after the accident. At the time of the trial he had effected a complete recovery, according to the testimony of a physician who testified on behalf of defendant, except for the loss of the two permanent teeth and the scar.
During the direct examination of plaintiff's physician the following transpired:
'Mr. Gosline: I believe that's all.' Cross-examination by Mr. Cole:
'
'Mr. Cole: I move the testimony as to the possibilities be stricken from the record and the jury be instructed to disregard it.
'The Court: Overruled.'
During further cross-examination, the physician testified as follows:
* * *
* * *
'
Defendant's physician testified that the boy had made a complete recovery from his head injury, 'and as to the possibility of any future results, I wouldn't feel that he would have.' He testified further that any permanent injury to the brain could be definitely determined by an electroencephalogram, which was not performed.
Other than as indicated above, no objection or motion was made to exclude testimony relating to possible aftereffects of the intracranial hemorrhage. The controversy at the trial, as well as in the briefs, is whether intracranial hemorrhage was established by the requisite degree of proof, and it is not particularly directed to the error in admission of testimony relating to possible aftereffects of such hemorrhage.
It is firmly established that a jury is required to determine probabilities and that such determination can not be based upon testimony as to mere possibilities. Brandt v. Mansfield Rapid Transit, Inc., 153 Ohio St. 429, 92 N.E.2d 1. Where prospective damages from an injury are claimed, they should be limited by the court in its charge to such as may be reasonably certain to result from the injury. Pennsylvania Co. v. Files, 65 Ohio St. 403, 62 N.E. 1047. In the instant case, the court properly charged the jury upon the subject of damages in accordance with the rule announced in the Files case, but in the Brandt case the court holds that the refusal of the court to exclude speculative testimony constitutes prejudicial error.
The question presented in the instant case is somewhat unique in the following respect: Generally, the principle of probability versus possibility is applied to cause and effect, such as, for example, in Industrial Commission cases where the question is whether the ailment resulted from an injury incurred in employment. Drew v. Industrial Commission, 136 Ohio St. 499, 26 N.E.2d 793; Drakulich v. Industrial Commission, 137 Ohio St. 82, 27 N.E.2d 932; Pfister v. Industrial Commission, 139 Ohio St. 399, 40 N.E.2d 671; Gerich v. Republic Steel Corp., 153 Ohio St. 463, 92 N.E.2d 393.
In the instant case, the loss of two permanent teeth and...
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State v. Wilson
...Co. (1952), 64 Ohio Law Abs. 385; Heldman v. Uniroyal, Inc. (1977), 53 Ohio App.2d 21, 371 N.E.2d 557 . But, see, Haase v. Ryan (1955), 100 Ohio App. 285, 136 N.E.2d 406 ; Ross v. Stricker (1949), 85 Ohio App. 56, 88 N.E.2d 80 , reversed on other grounds (1950), 153 Ohio St. 153, 91 N.E.2d ......
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