Nichols v. Oregon Short Line Railroad Co.

• Decision Date: 20 December 1902
• Docket Number: 1392
• Court: Utah Supreme Court
• Parties: NANCY J. NICHOLS, Respondent, v. THE OREGON SHORT LINE RAILROAD COMPANY, a Corporation, Appellant

70 P. 996

25 Utah 240

NANCY J. NICHOLS, Respondent, v. THE OREGON SHORT LINE RAILROAD COMPANY, a Corporation, Appellant

No. 1392

Supreme Court of Utah

December 20, 1902

Appeal from the Third District Court, Salt Lake County.--Hon. C. W Morse, Judge.

Action to recover damages for personal injuries alleged to have been received while plaintiff was a passenger on one of the defendant's trains. From a judgment in favor of the plaintiff, the defendant appealed.

REVERSED.

P. L Williams, Esq., and Geo. H. Smith, Esq., for appellant.

The rule of law is that a hypothetical question may assume any facts which the evidence tends to establish, but it must include and be based upon all the material facts, and this is especially true of material undisputed facts. Thompson on Trials, No. 610; People v. Vanderhoof, 71 Mich. 158; Levinson v. Sands, 81 Ill.App. 578; Davis v. State 35 Ind. 496.

Hypothetical questions put to an expert must not assume the existence of facts of which there is no evidence to support. Thompson on Trials, sec. 606; Reber v. Herring, 115 Pa. 599; North Amer. Acc. Ass. v. Woodson, 64 F. 689; see, also, Haish v. Payson, 107 Ill. 365; Bomgardner v. Andrews, 55 Iowa 638; Williams v. Brown, 28 Ohio St. 547; State v. Anderson, 10 Oregon 448; Greeno v. Roark, 56 P. (Kan. 1899), 329.

H. S. Tanner, Esq., for respondent.

ROLAPP, District Judge, delivered the opinion of the court. BASKIN, J., concurs; BARTCH, J., concurs in result.

OPINION

ROLAPP, District Judge

STATEMENT OF FACTS.

Early on the morning of May 1, 1900, two of the defendant company's trains collided. Plaintiff was a passenger for hire in one of these trains, and at the time of the collision plaintiff and her sister-in-law were in the aisle of the car, returning from the ladies' toilet. By the collision, plaintiff was thrown on the floor of the car upon her side, and her sister-in-law fell upon her. After being raised from the aisle, somewhat dazed, plaintiff discovered but a slight scratch on one of her fingers, and at first thought she was otherwise uninjured. After sitting for a little while, she arose to go out with the other passengers to view the wreck, when she started to tremble and shake as if she were having a chill. She went out of the car and walked up to where the disabled engines had smashed together, and at that time noticed tingling or pricking and numb sensations in her hand and arm. After she returned to the car she discovered that her side was hurt, and that there were sensations of numbness in her leg. At the time of the accident, plaintiff was about seven weeks in pregnancy. Plaintiff reached her destination (Soda Springs) about noon on Tuesday, May 1, and went to a hotel for lunch; and while there a doctor was summoned to attend plaintiff's sister-in-law, but plaintiff did not have him give herself any attention. After leaving the hotel, plaintiff and her husband and others walked about one and one-half mile, to plaintiff's brother-in-law's house, where they stayed. That evening plaintiff commenced to menstruate, and that condition continued for several days, and grew worse every day that it continued. The hemorrhage was not continuous, but was present some part of every day, and was accompanied with more or less pain. She had never had such an experience before, and did not know that its indications were dangerous. Plaintiff is a married woman, and has had four children. Eight years prior to this accident she had "milk leg," which bothered her for a year or two. This was the only sickness she ever had, outside of her confinements. She remained in Soda Springs Wednesday, and on Thursday, with her husband and others, drove in a two-seated spring conveyance to Chesterfield, a distance of twenty-five miles, reaching there about two o'clock in the afternoon. They remained there that afternoon and night, returning the next day to Soda Springs by the same conveyance. While in Chesterfield, plaintiff walked about a block and a half, and then lounged on the sofa. She was menstruating, but nothing to be alarmed at, and thought that if she was careful she would be all right. On the return trip from Chesterfield, plaintiff's condition had become so bad that she could hardly sit up in the conveyance, and then first informed her husband of her menstrual condition. About noon the next day, plaintiff and her husband left Soda Springs for Salt Lake, going to Pocatello, where she went to bed for a few hours, and they reached Salt Lake about ten o'clock the next morning. That evening, after remaining in Salt Lake all day, plaintiff took the train out to Riverton, and then drove about two miles to her home. The following morning she drove five miles in a buggy, rested a couple of hours, and drove back home. That night, just one week from the day of the accident, plaintiff suffered a miscarriage, but did not even then send for a doctor. She was confined to her bed for a week, and thereafter got around occasionally. In June following she consulted Dr. Anderson. She was still menstruating more or less for a month or more, and had pains in her back, side, leg, and arm, stinging sensations, numbness, and trembling. Upon consulting Dr. Anderson, she was advised that an operation was necessary. Dr. Robertson also gave the same advice. Later, Dr. Pinkerton called, with Dr. Robertson, and tried to get plaintiff to accept treatment at St. Mark's Hospital, to be gratuitously furnished by the defendant company, which she did not choose to do, but secured the services of Dr. Anderson, and went to his private hospital in August, and was operated on by Drs. Anderson, Giesy, and Lewis, and was benefited by the operation. Dr. Anderson said that an examination of the sexual organs disclosed a slight enlargement of the uterus, with a small cyst at the orifice, and a slight erosion from menstruation. The uterus was enlarged, from containing a thick membrane, which was removed in the operation August 21. The treatment is called "curettement." Dr. John Givens, a specialist in nervous troubles, with a practical experience of over twenty years, and who by order of the court made a physical examination of the plaintiff during the trial, testified to the plaintiff's physical condition, and what treatment she should have received after the accident, both as to pregnant and uterine condition. The physicians testifying on both sides of the case agree in their testimony that plaintiff, upon discovering that she was menstruating, should have kept entirely quiet and taken rest, and should not have taken the drives that were engaged in, and that these drives aggravated her condition. The case was tried to a jury, who rendered a verdict for $ 5,500 in favor of plaintiff. A motion for a new trial was made by defendant and denied by the court, and from this ruling, and the subsequent judgment, rendered upon the verdict, this appeal is taken.

ROLAPP, District Judge, after stating the facts, delivered the opinion of the court.

The errors assigned upon this appeal are all based upon testimony admitted into the record over defendant's objection, and which appellant claims constituted prejudicial error. During the trial, Dr. Anderson, a witness for plaintiff, was asked the following hypothetical question: "Q. I would ask you, if a person during the major portion of her lifetime had been in the enjoyment of...