Jones v. Chi., St. P., M. & O. Ry. Co.

• Decision Date: 16 May 1890
• Citation: 43 Minn. 279,45 N.W. 444
• Parties: JONES v CHICAGO, ST. P., M. & O. RY. CO.
• Court: Minnesota Supreme Court

43 Minn. 279

45 N.W. 444

JONESvCHICAGO, ST. P., M. & O. RY. CO.

Supreme Court of Minnesota.

May 16, 1890.

(Syllabus by the Court.)

1. The trial court may permit a question to an expert witness, calling for his opinion, to refer him to the testimony in the case, if he has heard it, instead of stating the facts it tends to prove; but in such case the question must require the witness to assume the testimony to be true.

2. A physician may give his opinion of the physical condition of a patient after an examination of him, though it be based in part on the statements of the patient made at the time, as to his sufferings and symptoms.

3. The fact that a passenger on a railroad is, when injured, in a baggage-car, in which, by the rules of the company, passengers are not permitted to be, is not negligence on his part that will defeat his recovery, unless it contributed to or aggravated the injury.

4. The fact that a railroad company has a rule prohibiting passengers being in its baggage-cars does not absolve it from the duty of care towards passengers who are in a baggage-car, if it habitually disregards the rule, and permits passengers to ride in such cars. Following Jacobus v. Railway Co., 20 Minn. 125, (Gil. 110.)

Appeal from district court, Blue Earth county; SEVERANCE, Judge.

J. H. Howe, S. L. Perrin, Lorin Cray, and J. L. Washburn, for appellant. Horace Austin and Daniel Buck, for respondent.

GILFILLAN, C. J.

In the various hypothetial questions put by the plaintiff to his expert medical witnesses, to elicit their opinions, we do not find that any fact was assumed that there was not evidence in the case fairly tending to prove. The rule is that for the purpose of a question to an expert witness, to call out his opinion, the party may assume as facts what the evidence tends to prove; and we do not see that the plaintiff was permitted in any instance to depart from this rule. The question in such a case usually states the facts assumed to be proved. Strictly, perhaps, it ought to. But for convenience the court may, and often does, permit the hypothesis to be put by referring the witness to the testimony if he has heard it, instead of stating the facts. But in such case the question must require the witness to assume the testimony to be true, and not leave it for him to determine whether any of it be true or not; for that would commit to him the function of the jury. In this particular the question to the defendant's witness Dr. Warner was objectionable. It neither stated the facts as the basis for his opinion, nor did it require him to assume the testimony which it referred to, and on which his opinion was asked, to be true. It left him to determine what of it he should consider true, and what false. It was therefore properly excluded. When a physician is called on to...