Kreuziger v. Chi. & N. W. Ry. Co.

• Decision Date: 04 December 1888
• Citation: 40 N.W. 657,73 Wis. 158
• Parties: KREUZIGER v. CHICAGO & N. W. RY. CO.
• Court: Wisconsin Supreme Court

73 Wis. 158

40 N.W. 657

KREUZIGER

v.CHICAGO & N. W. RY. CO.

Supreme Court of Wisconsin.

December 4, 1888.

Appeal from Dodge county court.

Action by Louise Kreuziger against the Chicago & Northwestern Railway Company, to recover damages for personal injuries. Judgment for plaintiff, and defendant appeals.Jenkins, Winkler & Smith, and C. H. Van Alstine, for appellant.

J. E. Malone and E. P. Smith, for respondent.

ORTON, J.

The facts of this case are mainly the same as in the previous case on the present call of Stutz against the same company, ( ante, 653,) and they will be more fully stated in that case, and the errors assigned, which are common to both cases, will be there considered. The facts are in short as follows: The plaintiff and a lady friend, Mrs. Stutz, entered the caboose of one of the company's freight trains, at Juneau, in this state, to ride to Minnesota Junction, about three miles north. The train stopped a considerable distance south of the depot at the junction, and they were informed by the conductor that they must get out. At that place there was a side track extending north to a point opposite the depot, and under it, at the highway on which the plaintiff lived, and to which she must go to reach her home, was a culvert or cattleguard, with open spaces between the ties. The plaintiff and her friend, who were the only passengers, got out of the caboose as ordered, and walked north on the side track, with the intention of reaching the highway, and proceeding to their homes thereon. About the time they started the side track was unoccupied, and a part of the train was uncoupled, and proceeded north, past the station, and then backed down south, on the side track, towards them, as they were so walking thereon, but stopped 300 feet north of the culvert. The plaintiff and her friend, however, discovered that the cars were approaching towards them, and walked fast, so as to reach the highway in advance of them, and while so walking they both fell into the culvert, which was not observed, in the dark. The were both much injured, and the plaintiff suffered epileptic fits, as the result of the fright caused by the apprehension of the cars coming upon them before they could get out.

1. It is assigned as error that Dr. Halleck, as a medical witness for the plaintiff, was asked: “Do not all the authors, so far as you have read, and those of standing in the profession, lay down, among other causes of epilepsy, fright, and mental excitement, as predisposing causes of epilepsy?” This was objected to, on the ground of its being leading and incompetent, by the counsel for the defendant, and said objection was overruled by the court, and exception taken. Dr. Shimonick, another witness for the plaintiff, was asked, “What are the causes of epilepsy?” and he answered: “Well, there are a great many causes. Among the great many causes laid down by the authors, is mental shock, excitement, mental overwork, fright, terror, shocks of all descriptions.” The defendant's counsel moved to strike out that answer, and the motion was denied, and exception taken. The witness was then asked: “Now, will you give me the names, doctor, of some of the professional authors who treat on this subject of epilepsy, recognized by the profession, with which you are acquainted?” To this question the defendant's counsel objected generally, and the objection was overruled, and exception taken, and the witness answered: “Hamilton is one of the recognized authors in this country, Naegel of Germany, and Hammond of New York.” The witness was then asked: “These authors that you have mentioned,--what do they say with regard to this disease being produced by fright or terror or shock?” The witness answered: “They place mental excitement from grief or agony or terror as one of the causes of epilepsy.” These questions and answers relating to medical books and authors were clearly improper, and the ruling erroneous. Stilling v. Town of Thorp, 54 Wis. 528, 11 N. W. Rep. 906;Boyle v. State, 57 Wis. 472, 15 N. W. Rep. 827; the late case of Soquet v. State, ante, 391. There was very much of this kind of testimony of these and other medical witnesses admitted after general objection. But we are disposed to hold that this error, so often repeated, is not sufficient ground for reversal of the judgment, for two reasons: (1) The objection to this evidence was waived by the defendant, by having first introduced it, and by having had the benefitof the same kind of evidence, obtained on cross-examination of the plaintiff's witnesses. (2) The attention of the court, or of the opposite counsel, does not seem to have been called to this particular ground of its incompetency. On the first cross-examination of the first medical witness, Dr. Halleck, the counsel of the appellant called out the testimony that “he had to go a good deal by authorities; the books claim that it will;” and, again, “I think some authorities claim that about forty per cent. of patients utter a cry.” The learned counsel asked: “Tell me what books you are speaking of. Let us have the authorities.” The instances are numerous where this kind of testimony was obtained by the defendant without objection, before the question was raised, if raised at all, by objection. The counsel for the plaintiff first introduced this kind of evidence without objection, such as, “I think the authorities give hereditary causes oftener than any other.” “Authors claim as a rule,” etc. Then, after such cross-examination, when the witness is being re-examined by the plaintiff's counsel, the counsel for the defendant made his first and only objection as to its competency; and that was clearly proper, for it was cross-examination as to matter called out by the defendant. In all other instances, the objection was only general. When Dr. Senn, a witness of the defendant, was cross-examined, he testified: “It would be an exciting cause, and as such it would be enumerated in the books;” and yet this was not objected to. When he was examined in chief he testified that “he had made no special study of epilepsy,” but said: “I think that modern science recognizes two distinct causes.” This would seem to be sufficient to justify holding that the defendant waived all objection to this kind of testimony. The...