Hard v. Spokane International Ry. Co.

• Citation: 41 Idaho 285,238 P. 891
• Parties: CLARENCE C. HARD, Respondent, v. SPOKANE INTERNATIONAL RAILWAY COMPANY, a Corporation, Appellant
• Decision Date: 01 August 1925
• Court: United States State Supreme Court of Idaho

238 P. 891

41 Idaho 285

CLARENCE C. HARD, Respondent, v. SPOKANE INTERNATIONAL RAILWAY COMPANY, a Corporation, Appellant

Supreme Court of Idaho

August 1, 1925

PERSONAL INJURY - EXPERT TESTIMONY - QUALIFICATION OF EXPERT WITNESS-TESTIMONY OF PLAINTIFF-INSTRUCTIONS.

1. In a personal injury case the question of the competency of a proposed expert witness must be determined in the first instance by the court if objection is made. If no objection is made as to the qualifications of the witness at the time his testimony is offered, the question of his competency as an expert cannot be raised for the first time in this court.

2. In personal injury actions considerable latitude is allowed in the introduction of evidence, to aid the jury in determining the extent of the damages sustained by the plaintiff.

3. All the instructions given in a case must be read and considered together as a whole, and where they are not inconsistent but may be reasonably and fairly harmonized, it will be assumed that the jury gave due consideration to the whole instructions rather than to isolated portions thereof.

4. Under the provisions of C. S., sec. 6728, the appellate court must disregard immaterial errors in every stage of an action which do not affect the substantial rights of the parties.

APPEAL from the District Court of the Eighth Judicial District, for Bonner County. Hon. John M. Flynn, Judge.

Action to recover for personal injury. Judgment for plaintiff. Affirmed.

Judgment affirmed, with costs to respondent.

E. W Wheelan, for Appellant.

The evidence of Doctor Jones as to the condition of Mrs. Hard after the accident was wholly incompetent. (C. S., secs 2141-2154; State v. Fite, 29 Idaho 463, 159 P 1183.)

Where the charge contains no adequate statement of the issues and its effect is necessarily misleading and unfair the judgment should be reversed. An instruction which misstates the issues or defenses is erroneous and is properly refused, and the giving thereof is ground for reversal if it has a tendency to confuse or mislead the jury. (38 Cyc. 1611; Nelson v. Spears, 16 Mont. 351, 40 P. 786; Howell v. Wilcox etc. Sewing Machine Co., 12 Neb. 177, 10 N.W. 700; Klosterman v. Olcutt, 27 Neb. 685, 43 N.W. 422; Hightower v. Ansley, 126 Ga. 8, 7 Ann. Cas. 927, 54 S.E. 939; Reed v. Gould, 93 Mich. 359, 53 N.W. 356; Swift & Co. v. Bleise, 63 Neb. 739, 89 N.W. 310, 57 L. R. A. 147; Ford v. Chicago, R. I. & P. Ry. Co., 106 Iowa 85, 75 N.W. 650.)

Wm. J. Costello, for Respondent.

Objections to the admissibility of evidence cannot be made for the first time in the appellate court. (Darby v. Heagerty, 2 Idaho (260) 282, 13 P. 85.)

If the language of an instruction is inexact but the evidence to which it refers is so full that the jury cannot be thought to have been misled by it, the error is not a reversible one. (Carroll v. Hartford Fire Ins. Co., 28 Idaho 466, 154 P. 985.)

Where the instructions to a jury, clearly as a whole, have stated the law of the case, the jury will be presumed to have followed them as a whole and not to have followed some isolated instructions. (Osborn v. Cary, 28 Idaho 89. 152 P. 473; Cady v. Keller, 28 Idaho 368, 154 P. 629.)

JOHNSON, District Judge. William A. Lee, C. J., and Wm. E. Lee, Budge and Givens, JJ., concur.

OPINION

JOHNSON, District Judge.

--This is an action for damages instituted by the respondent against the appellant for injuries alleged to have been sustained by the wife of respondent by reason of the negligence of the appellant. The complaint alleges in effect that the wife of the respondent was driving a horse hitched to a buggy and that while crossing the tracks of the respondent company she suffered injuries due to the dangerous condition of the track. The jury returned a verdict in favor of the respondent in the sum of $ 1,825, upon which judgment was entered. This is an appeal from the judgment.

The assignments of error, when grouped, cover but two points: one that the evidence is insufficient to justify the verdict, and the other that the court erred in instructions given and in refusing to give instructions requested.

Appellant specifies two points as to the insufficiency of the evidence. The first is stated as follows:

"There is a variance between the allegations of the complaint and the proof, the proof wholly failing to establish any excavation or any dangerous condition on defendant's right of way, or on the street crossing defendant's right of way, which would or could cause the injury complained of."

J. E. Hanifen, the superintendent of the appellant company, was called by the respondent for cross-examination under the statute, and he testified, without objection, that he built the side-track on the company's right of way at the place where the accident occurred; that it was constructed in October or November, 1920.

Dr. N. R. Wallentine, a resident physician of Sandpoint, testified that on about November 4, 1920, he had occasion to cross the tracks at the place where the accident occurred, and in reply to a question he answered:

"Well, when I came to the track, of course, I had been accustomed to crossing there. I don't remember how long before this I had crossed it, but it was at night; it was dark. Of course, I had lights but there was a little raise there, or was at that time, a little grade going up to the main track, a little pitch to go up; and you can't see what is on top until you get up that pitch, and I was going ahead as usual, and suddenly dropped off into this side-track where there was no dirt or anything, just the rails and the ties."

He further testified that there was nothing up to warn anyone of danger; that you could not see it until you got up to it; that he had traveled across there many times before and that it was never in that condition before; that he had a little difficulty in backing out.

Mrs. Hard testified that the accident occurred on November 7, 1920; that she was going home with a horse and buggy, with her two children, the younger child being ten months old; that it was dark, and that as she approached the crossing there was a train on the track which was moving and that the train was about a half a street across from her when she started across the track, and that she whipped her horse to get across the track and looked to see if the train was still moving, and she felt a jolt and went out--was out; that when she picked herself up she was on the ground by the railroad track; that she did not know how she got out--just went out over the dashboard; that when she got up the horse was gone and the buggy was still there.

Ray Wyatt, a truck driver living at Sandpoint, testified that he was walking home and that he noticed her crossing the track and the horse and buggy loose; that he did not see what became of her; that he immediately went to the place of the accident; that the horse was gone and the buggy was setting in the track; that he took the buggy off the track; that he noticed a train in the vicinity. He described the condition of the crossing as follows: "They were just putting in that new switch, and the ties and rails were down, but there was no crossing in it, no planks on the crossing, nor the ballast was not in between the ties." There were no guards up or lights on either side of this crossing that evening; that he pulled the buggy out one wheel at a time; the front wheels were up against the west rail.

The second point specified is that: "There is no competent proof in the record of any injury to Mrs. Hard, the only evidence of her physical injury being the evidence of Doctor T. J. Jones, who is engaged in the practice of Chiropractic, and his evidence was wholly incompetent in this case. The evidence of Doctor Jones as to the condition of Mrs. Hard after the accident is not entitled to any consideration."

Appellant contends that because Doctor T. J. Jones, who treated Mrs. Hard, both before and after the accident, was a chiropractor and not a physician and surgeon, his evidence was for that reason wholly incompetent. Appellant concedes that perhaps there is no objection to a chiropractor testifying as to the nature of a treatment given to a patient, if the nature of the treatment is material in the case involved, but it is insisted that this is as far as he should be permitted to testify under our statutes. It is conceded in appellant's brief that no objection was made to the witness Jones testifying.

1 Wigmore on Evidence, sec. 569, p. 980, states that: "The common law . . . . does not require that the expert witness on a medical subject shall be a person duly licensed to practice medicine." (Golder v. Lund, 50 Neb. 867, 70 N.W. 379; People v. Rice, 159 N.Y. 400, 54 N.E. 48.)

This court said in the case of Carscallen v. Coeur d'Alene etc. Co., 15 Idaho 444, at page 452, 16 Ann. Cas. 544, 98 P. 622:

"No very nice distinction has ever been drawn or fixed rule established by which a trial judge shall determine the exact amount of knowledge, experience and skill a so-called expert shall have before permitting him to testify before the jury. That question must be determined in the first...