Johnson v. Bangor Ry. & Elec. Co.

• Decision Date: 24 November 1925
• Citation: 131 A. 1
• Parties: JOHNSON v. BANGOR RY. & ELECTRIC CO.
• Court: Maine Supreme Court

131 A. 1

JOHNSON

v. BANGOR RY. & ELECTRIC CO.

Supreme Judicial Court of Maine.

Nov. 24, 1925.

Exceptions and Motion from Superior Court, Penobscot County, at Law.

Action by Axel George Johnson against the Bangor Railway & Electric Company. Verdict for plaintiff. On motion for new trial and exceptions to rulings on admission of evidence. Motion and exceptions overruled.

Argued before WILSON, C. J., and PHILBROOK, MORRILL, DEASY, BARNES, and BASSETT, JJ.

Pattangall, Locke & Perkins, of Augusta, and Preeland Jones, of Bangor, for plaintiff.

Ryder & Simpson, of Bangor, for defendant.

MORRILL, J. This action to recover damages for personal injuries is before the law court upon motion for a new trial in the usual form, and upon exceptions to rulings upon the admission of evidence. The argument upon the motion has been confined to the contention that the damages are excessive.

An examination of the record shows that the trial developed a decided difference of opinion between the expert witnesses summoned by the respective parties as to the injuries which the plaintiff sustained. The writ alleged, and the medical testimony for the plaintiff tended to show, that the plaintiff sustained a fracture of the tenth dorsal vertebra. The witnesses for the defendant denied that there were any indications of such fracture. A large part of the record before us is taken up with the testimony of the expert witnesses. The counsel for defendant contends that the evidence so greatly preponderates in favor of his client that the court should be satisfied that the jury manifestly erred, and that the damages are excessive. No claim of bias or prejudice on the part of the jury is made. The argument is largely confined to the proposition that the jury did not give sufficient weight to the medical testimony in the light of plaintiff's condition before the accident.

In considering a case so presented, it must be borne in mind that the testimony of the expert witnesses is only an expression of opinion, and is received upon the theory that their special learning and skill may render their opinions of service to the jury; that thus the jury may obtain some assistance, not otherwise available to them. 3 Wigmore on Ev. § 1923, p. 2558. The evidence may be stated as an assertion in the negative, as when a witness, examining an X-ray film of plaintiff's back, taken by another, asserts that he perceives no indication of a fracture; yet the testimony is but the expression of the witness' opinion, his interpretation of what this highly scientific aid to diagnosis shows; and its accuracy, or the weight to be given to it, is quite dependent upon the skill of the operator who took the film, and the clearness which he has obtained, as well as upon the witness' own scientific skill.

The assistance which testimony of this character—we refer to expert testimony in general—may afford is, like other testimony, wholly for the consideration of the jury. They may fairly come to the conclusion that none of it, or a part only, is entitled to weight in their deliberations. The testimony in this case well illustrates the limitations in the value of testimony of this kind. It was conceded by expert medical witnesses on both sides that at the date of the injury, January 29, 1923, Mr. Johnson was suffering from a condition of the back known as arthritis deformans, a progressive disease; it is the claim of the defendant that the plaintiff suffered no permanent injuries on account of the accident.

An eminent surgeon who first saw the plaintiff on December 19, 1923, testifying for the defendant, frankly gave this testimony at the close of the cross-examination:

"Q. Don't you think there was a pretty rapid progression in the trouble with his back that went on about January 29, 1923?

"A. That I cannot answer.

"Q. Caused by the accident?

"A. I should not think it shows that there was an active process; I should not think it shows. I cannot tell that, I don't know what happened.

"Q. That is the real fact, isn't it?

"A. Yes, sir.

"Q. That you could not tell because you don't know what did happen?

"A. No, sir."

Another specialist in orthopedic surgery, who first saw plaintiff on May 8, 1924, a few days before the trial, testifying for defendant, said:

"Q. If it was true that prior to January 29, 1923, Mr. Johnson was capable of doing heavy laborious work about his farm, and did do that heavy laborious work every day, and that since that time has been unable to do it and can only do light work, have you found anything in his condition which would account for that change?

"A. I have not.

"Q. That is, the mere presence of arthritis would not account for it, would it?

"A. No; I do not think so.

"Q. That is of long standing?

"A. That is of long standing.

"Q. And if there is that change, if he is in fact unable to do heavy laborious work at the present time, and has been since the 30th of January, 1923, and was able to do heavy laborious work prior to that time, how would you account for it?

"A. I do not account for it at all."

It will serve no useful purpose to analyze at length the testimony printed in the record. We have endeavored to point out the character of the testimony on which defendant relies, and the inherent limitations of its value as aid to the jury.

It is apparent that, after listening to the extended recital of the views of the expert witnesses, the jury did not lose sight of the fact that the plaintiff was seriously injured, a fact which they were fully justified in finding, without undertaking to determine the precise injury, if they believed the evidence submitted in his behalf. So finding, we cannot say that they manifestly erred in the award of damages. We do not perceive any ground on which, under the motion, we are warranted in interfering with the verdict.

Exceptions.

The bill of exceptions contains the following statement:

"The pleadings and all testimony and exhibits are hereby made a part of these exceptions and are to control any statements thereof in this bill."

The court on several occasions has expressed disapproval of the practice of making the entire record a part of bills of exceptions to rulings on the admission or exclusion of evidence. The essential requirements of a bill of exceptions, presented in a "summary manner" (R. S. c. 82, § 55) have been clearly indicated (McKown v. Powers, 86 Me. 291, 29 A. 1079; Salter v. Greenwood, 112 Me. 548, 92 A. 786; Dennis v. Packing Co., 113 Me. 159, 93 A. 58, Ann. Cas. 1917D, 788; State v. Howard, 117 Me. 69, 102 A. 743; Small v. Wallace, 124 Me. 366, 129 A. 444). Nor should the law court be expected to correct statements in a bill which has been allowed and signed by the presiding justice, by a search of the record. The exceptions should not be allowed unless found to be true; "when found true they shall be allowed and signed by such justice." Section 55, supra. The exceptions must be deemed to be true, and will be considered as stated without reference to the pleadings, exhibits, and testimony, except as the latter is quoted in the bill.

First exception:

"Plaintiff's son, Harold Dixon Johnson, was called as a witness by plaintiff and was asked by plaintiff's counsel, among other things, the following questions, and gave the answers indicated:

"'Q. When you came to harvest your corn, did your father do anything about that?

"'A. No, sir.

"'Q. Had he, so far as you could judge, in observing him, tried to do all that he could in the way of work?

"'A. He has.'

"The last question was objected to by defendant as calling for witness' opinion or inference. The presiding justice, however, admitted same over the objection."

The exception must be overruled. The fact that the testimony expressed the witness' opinion or inference does not necessarily render it objectionable. Snow v. B. & M. Railroad, 65 Me. 230; Stacy v. Portland Pub. Co., 68 Me. 279, 285:

"The witness in effect describes the facts when he gives his opinion. It is his way of stating them. Such testimony is admitted from necessity. A witness can seldom give in detail all the points and particles which go to make up his belief, but he can characterize them. Practically, the rule admitting such quasi opinion is convenient and safe." Peters, J., in Stacy v. Portland Pub. Co., supra.

The practice of admitting quasi opinions from nonexpert witnesses in such cases is in harmony with the rule which admits the best evidence. Doe, J., dissenting in State v. Pike, 49 N. H. 423, 6 Am. Rep. 533. The test to be applied is thus stated by Professor Wigmore:

"Such a witness' inferences are inadmissible when the jury can be put into a position of equal advantage for drawing them—in other words, when by the mere words and gestures of the witness the data he has observed can be so reproduced that the jurors have those data as...