Pecos & N. T. Ry. Co. v. Coffman

• Decision Date: 19 June 1909
• Citation: 121 S.W. 218
• Court: Texas Court of Appeals
• Parties: PECOS & N. T. RY. CO. v. COFFMAN.

121 S.W. 218

PECOS & N. T. RY. CO. v. COFFMAN.

Court of Civil Appeals of Texas.

June 19, 1909.

Appeal from District Court, Deaf Smith County; J. N. Browning, Judge.

Action by J. J. Coffman against the Pecos & Northern Texas Railway Company. Judgment for plaintiff, and defendant appeals, Reversed and remanded.

Madden & Truelove, Carl Gilliland, and Terry, Cavin & Mills, for appellant. Capps, Cantey, Hanger & Short and Knight & Staton, for appellee.

DUNKLIN, J.

While J. J. Coffman was a passenger on the Pecos & Northern Texas Railway, the engine ran upon a side track in the town of Hereford and collided with a string of box cars. Coffman instituted suit for damages for injuries alleged to have been received as a result of being thrown against the back of a seat and on the floor of the car by reason of this collision, and from a judgment in his favor defendant has appealed.

Defendant's first four assignments complain of the action of the court in overruling objections to certain testimony of witnesses C. L. Nash, Mrs. Sallie Coffman, Geo. M. Slaughter, and F. C. Davidson. The testimony objected to was as to complaints by plaintiff of pain and soreness in his back, an impediment in his walk, and an answer by Mrs. Coffman, plaintiff's wife, to one question, to the effect that prior to the accident Mr. Coffman was well and suffered from nothing. The objections were that the testimony was hearsay, that the declarations of plaintiff detailed by the witness were self-serving, and that the testimony of Mrs. Coffman to the effect that prior to the accident Mr. Coffman was well was a conclusion which the witness was not qualified to give. There was no error in the admission of the testimony. St. L. & S. F. R. Co. v. Boyer, 44 Tex. Civ. App. 311, 97 S. W. 1070, and authorities there cited; Ry. v. Smith (Tex. Civ. App.) 90 S. W. 929; Ry. v. Wright (Tex. Civ. App.) 84 S. W. 272; Rutherford v. Ry., 28 Tex. Civ. App. 625, 67 S. W. 163, and authorities there cited.

The plaintiff's contention was that from the injury received in the accident he was suffering from myelitis or sclerosis of the spinal cord. He submitted to an examination by physicians in Kansas City for the purpose of determining whether or not his spine was so diseased. Dr. Rogers was present at this examination, and testified that from his observations during that examination he formed, and at the time of the trial had, a definite opinion as to whether or not Mr. Coffman was suffering from any form of myelitis or sclerosis of the spinal cord. Dr. Rogers further testified that he was a graduate of the Medical College of the University of Tennessee, that he had been engaged in the practice of medicine 37 years, that he was not a specialist in spinal cord diseases, had never treated a case of myelitis or sclerosis of the spinal cord, but had read on those subjects, and had such knowledge and information as a general practitioner would have. Defendant's counsel then asked him to state to the jury the opinion that he had formed as to whether or not Mr. Coffman had sustained any injury to his spine or was suffering with any kind of spinal affection. Plaintiff objected to this question on the ground that Dr. Rogers was not qualified to express an opinion. The court sustained this objection, stating at the time that "it would be better to question the witness further touching his qualifications," and stated to defendant's counsel that he might go ahead and further qualify the witness to speak. Defendant's counsel thereupon stated that he could not further qualify the witness. The bill of exception approved by the court contains the statement in effect that the witness, if permitted, would have testified that in his opinion plaintiff was not suffering from any spinal affliction. To sustain the ruling of the court, appellee contends that whether a witness has qualified himself to testify as an expert is a question for the determination of the trial court, whose decision will not be reviewed on appeal unless a gross abuse of the court's discretion is made to appear. In support of this contention many cases are cited, such as Meyer Bros. Drug Co. v. Madden, Graham & Co., 45 Tex. Civ. App. 74, 99 S. W. 723; Spaulding v. City of Edina, 122 Mo. App. 65, 97 S. W. 545; Combs v. Rountree Construction Co. (Mo.) 104 S. W. 77; Inland & Seaboard Coasting Co. v. Tolson, 139 U. S. 559, 11 Sup. Ct. 653, 35 L. Ed. 273; Chateaugay Ore & Iron Co. v. Blake, 144 U. S. 484, 12 Sup. Ct. 731, 36 L. Ed. 513; Stilwell & B. Mfg. Co. v. Phelps, 130 U. S. 520, 9 Sup. Ct. 601, 32 L. Ed. 1035.

The spinal injury was the principal injury complained of by the plaintiff, and upon the issue as to whether or not plaintiff was suffering from this injury the testimony was sharply conflicting, several physicians testifying to such injuries, and several others testifying to the contrary. We think it well settled by the authorities that a physician in general practice who has studied the particular disease concerning which he is called upon to give an opinion is qualified to give such opinion, even though he has not made such diseases a specialty in his practice, and even though he has never had occasion to treat a patient for that disease, a want of experience going to affect the weight of his testimony only. Lawson on Expert and Opinion Evidence (1st Ed.) pp. 118-129, inclusive; Montgomery v. Commonwealth, 88 Ky. 509, 11 S. W. 475; 1 Wigmore on Evidence, §§ 569 and 687.

If it be conceded that ordinarily it would have been discretionary with the trial court to exclude the opinion of Dr. Rogers as an expert, we think that under the authorities, and in view of the conflict of testimony upon the issue as to whether or not the plaintiff was suffering from the spinal diseases complained of, it was an abuse of such discretion to exclude said testimony, and its exclusion constituted error for which the judgment of the...