Hill v. Union Pacific Railroad Company

• Court: Kansas Supreme Court
• Writing for the Court: HOPKINS, J.:
• Citation: Hill v. Union Pacific Railroad Company, 215 P. 310, 113 Kan. 489 (Kan. 1923)
• Decision Date: 12 May 1923
• Docket Number: 24,444
• Parties: C. E. HILL, Appellee, v. UNION PACIFIC RAILROAD COMPANY, Appellant

215 P. 310

113 Kan. 489

C. E. HILL, Appellee, v. UNION PACIFIC RAILROAD COMPANY, Appellant

No. 24,444

Supreme Court of Kansas

May 12, 1923

Decided January, 1923.

Appeal from Douglas district court; HUGH MEANS, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. APPEAL--When Matter Not Reviewable. An objection to the introduction of evidence is not available in this court for purposes of error unless the record shows its timely presentation to the trial court.

2. NEGLIGENCE--Personal Injuries--Instructions Concerning Testimony of Expert Witnesses. It is error for the court in its instructions to single out and give special significance to the testimony of expert witnesses and to refuse a proper instruction concerning such testimony, but a judgment will not be reversed because of such error unless the substantial rights of the complaining party have been affected.

3. SAME. The instructions examined and held not to warrant a reversal.

R. W Blair, T. M. Lillard, and O. B. Eidson, all of Topeka, for the appellant.

John J. Riling, and Edward T. Riling, both of Lawrence, for the appellee.

OPINION

HOPKINS, J.:

C. E. Hill recovered judgment for $ 2,500 for injuries sustained through the negligence of the defendant. Trial was to a jury. Defendant appeals. Plaintiff alleged in his petition, in substance, that:

"On the 30th day of December, 1920, he was employed by the Poehler Mercantile Company, and had hauled a truck load of freight for that company to the Union Pacific freight house, at Lawrence, Kan., and had unloaded his truck into the freight depot at one of the doors provided for that purpose; that some bricks in the wall over the door at which plaintiff was at work had been negligently laid, without proper cement or tie rods, and that a number of these bricks fell upon the head and body of the plaintiff while he was there at work, and permanently injured him; . . . . that plaintiff's skull was fractured; that he received an injury and concussion of the brain, and hemorrhages of the brain; that his sense of touch on the left side was injured; his left leg and arm have been weakened so that he does not have full use of the same; that there were injuries to his eyes; that his nervous system was injured, all of which injuries were the direct and proximate result of defendant's negligence."

1. The defendant admits that "There was sufficient evidence on the question of negligence to take the case to the jury," but complains that, "The court erred in permitting Dr. Skoog to give his opinion as to permanent brain injury, as an expert, when that opinion was based partly on history given by plaintiff and plaintiff's wife." Dr. Skoog testified, at considerable length, concerning examinations he had made of the plaintiff and his conclusions therefrom. On cross-examination these questions were asked and answers given:

"Q. What's the matter with this man? Now you have given a lot of high sounding words here to the jury, that I doubt if they got all of them--I know I didn't? What's the matter with the man, in plain English? A. Well, for your benefit, I will state that this man's brain has been seriously injured.

"Q. The man's brain has been seriously injured? A. Yes, sir.

"Q. How did you find that out? A. By the various tests which I have described here, corroborated by the X-ray plates, corroborated by the history of the facts given by the plaintiff and his wife.

. . . .

"Q. Mr. Hill's symptoms are largely subjective, aren't they? A. No, sir.

"Q. That is, a large part of the troubles that he has, as you have detailed it, is things that he tells about himself? A. No, sir. In fact, I tried to avoid all of those things. I might have added more had I quoted him."

It has been held that "A physician, while testifying as an expert, is not permitted to testify to his conclusions as to the permanency of an injury to a patient based partially upon the history of the injury detailed to him by the patient or other person and partially upon his own examination. (Betterment Co. v. Reeves, 73 Kan. 107, syl. P 2, 84 P. 560, and cases cited.) It has also been held that while "It is error to permit physicians, testifying as experts, to testify concerning the condition of a person examined by them, and base their opinion partly on the history of the case; but where there is ample evidence, not based on the history of the case, to establish all the facts so erroneously testified to, such error is not sufficient to cause a reversal of the judgment." ( Smith v. Railroad Co., 95 Kan. 451, syl. P 2, 148 P. 759, and cases cited.)

The plaintiff contends that the statement elicited by the defendant on the cross-examination of Dr. Skoog did not mean that the doctor's opinion was based wholly or partly...