Sever v. Minneapolis & St. L. Ry. Co.

• Decision Date: 18 October 1912
• Citation: 137 N.W. 937,156 Iowa 664
• Parties: SEVER v. MINNEAPOLIS & ST. L. RY. CO.
• Court: Iowa Supreme Court

156 Iowa 664

137 N.W. 937

SEVER

v.MINNEAPOLIS & ST. L. RY. CO.

Supreme Court of Iowa.

Oct. 18, 1912.

Appeal from District Court, Dallas County; Lorin N. Hays, Judge.

Action at law to recover damages for injuries received by plaintiff while a passenger on one of defendant's trains. Trial to a jury. Verdict and judgment for plaintiff in the sum of $3,000, and defendant appeals. Reversed and remanded.Geo. W. Seevers and W. H. Bremner, both of Minneapolis, Minn., and White & Clarke, of Adel, for appellant.

Burton Russell, of Adel, and Geo. B. Lynch, of Adair, for appellee.

DEEMER, J.

While a passenger on one of defendant's trains in the state of South Dakota plaintiff claims to have been injured through the negligence of defendant's servants and agents in handling a mixed train made up of freight and passenger coaches. It is claimed that these employés switched the train upon which plaintiff was riding onto a side track against a freight car or cars standing upon the siding with such force and violence as to violently shock him and injure and wrench the muscles and tendons of his back, thus severely and permanently injuring him. The defendant denied the alleged negligence, and also denied that plaintiff suffered any injury from the alleged collision. On these issues the case was tried upon conflicting testimony, and the verdict was for plaintiff in the amount already stated. Three main propositions are relied upon for a reversal.

[1] The first challenges the sufficiency of the testimony to establish negligence. Aside from the fact that there was a collision of some kind the nature of which is in dispute, there is positive testimony in the record from plaintiff himself of such a shock or jar from the impact of the cars as would take the case to a jury. Plaintiff was not required to produce direct testimony as to the negligence of the employés. As a rule a passenger cannot do this. He knows only of results, and, if he shows an unusual and violent jerk or jar, such an one as would not ordinarily happen had the employés used due care, he has made out at least a prima facie case. Burr v. Railroad Co., 64 N. J. Law, 30, 44 Atl. 845; Dougherty v. Railroad Co., 81 Mo. 325, 51 Am. Rep. 239; Consolidated Co. v. Thalheimer, 59 N. J. Law, 474, 37 Atl. 132; Railroad Co. v. Pollard, 22 Wall. 341, 22 L. Ed. 877;Caldwell v. Steamboat Co., 47 N. Y. 282; Pershing v. Railroad Co., 71 Iowa, 561, 32 N. W. 482; Inland Co. v. Tolson, 139 U. S. 551, 11 Sup. Ct. 653, 35 L. Ed. 270;Lincoln St. R. Co. v. McClellan, 54 Neb. 672, 74 N. W. 1074, 69 Am. St. Rep. 736;Clow v. Traction Co., 158 Pa. 410, 27 Atl. 1004. While there is some little confusion in the cases upon this proposition, we think the maxim res ipsa loquitur applies, and that there was enough testimony to take the case to a jury. This holding answers two contentions made for appellant, and there remains but one to which we need give attention. That has reference to rulings on certain testimony introduced by plaintiff.

[2][3] 2. Three or more doctors were examined for plaintiff, and hypothetical questions were propounded to each of them in substantially the same form. These questions were very long, and covered substantially all the testimony given with reference to plaintiff's position in the car, the nature of the jar to the train in which he was riding, the character of the injuries claimed by him, the nature and extent thereof, and the descriptions given thereof by his attending physicians, and the questions wound up with these interrogatories: “What would you say as a physician and surgeon as to the probability of his injury, the probable cause of the injury that you have detailed before the jury? What do you say was the probable cause of the injury? * * * Q. Now, Doctor, taking these facts into consideration, under these and no others, what would you say was the cause of the detachment or rupture of the muscles?” “Taking these facts into consideration and no others, what would you say was the probable cause of the injury?” “What do you say was the fact with these facts and others, what would you say was the probable cause of the injury?” “Q. Now, Doctor, taking the same question which I gave you, taking these same facts into consideration and no others, what will you say was the cause of the condition that you have detailed here to the jury?” The answers to these interrogatories were as follows: “A. Well, it seems to me I have answered the question before that covers the question from the history given by the above. I would say that the circumstances on the railroad train caused the injury. * * *” “A. I should say unquestionably it was due to the impact of the train causing enforced flection of the spine.” “A. Due to the impact of the cars.” In addition to objecting to the questions when propounded as incompetent calling for conclusions and invading the province of the jury, defendant's counsel moved to strike each and all of these answers. The objections and motions were overruled, and these rulings present the only serious question in the case. Unless we are to make a radical departure from the rule announced in many of our previous cases, we must hold that these rulings were erroneous. In Muldowney v. Railroad Co., 39 Iowa, 622, we said: “This question and answer put the witness in the place of the jury to determine the ultimate fact, and it was, therefore, error to admit them. The witness might properly state what facts he knew respecting the treatment and care, and then give his medical opinion upon such facts, or he might be asked his opinion upon an assumed state of facts which the testimony of the other witnesses tended to establish.” See, also, Phillips v. Starr, 26 Iowa, 351; Martin v. Light Co., 131 Iowa, 739, 106 N. W. 359; Butler v. Insurance Co., 45 Iowa, 98; In re Betts' Estate, 113 Iowa, 116, 84 N. W. 975;Collins v. Railroad Co., 122 Iowa, 231, 97 N. W. 1103;Bruggeman v. Railway Co., 147 Iowa, 191, 123 N. W. 1007, Ann. Cas. 1912B, 876;State v. Rainsbarger, 74 Iowa, 196, 37 N. W. 153. See, also, the following from other states: Ill. Cent. v. Smith, 208 Ill. 608, 70 N. E. 628;Hellyer v. People, 186 Ill. 550, 58 N. E. 245;People v. Hare, 57 Mich. 505, 24 N. W. 843;Lacas v. Railroad Co., 92 Mich. 412, 52 N. W. 745;Rowell v. Lowell, 11 Gray (Mass.) 420;Filer v. Railroad Co., 49 N. Y. 42;Tyler v. Wheeler (Tex. Civ. App.) 41 S. W. 517. These cases and many others which might be cited draw a sharp distinction between a question calling for an opinion by an expert as to what might or might not have caused an injury and one calling for an opinion as to what in fact did cause it. We need only make the following additional quotations: In State v. Rainsbarger, supra, we said: “The counsel for defendant, after stating hypothetically the condition of the body of the deceased, the character of the wounds, and other matters, asked a witness who was a physician how the wounds upon defendant were probably made. The evidence was rightly excluded. It sought for an expression of opinion based upon matters which were to be weighed and considered by the jury, and determined by the exercise of their own judgments, and not upon the opinion of another. The matters upon which the question was based were not peculiarly within the knowledge of the witness or of the profession to which he belonged.” In Re Betts' Estate, supra, this language was used: “The answer of the witness to the fifth interrogatorywas rightly suppressed, for the reason that a witness cannot be permitted to give his opinion in answer to any inquiry which embraces the whole merits of the case and leaves nothing for the jury to decide”--citing De Witt v. Barly, 17 N. Y. 347; Jameson v. Drinkald, 12 Moore, 148; Gibson v. Gibson, 9 Yerg. (Tenn.) 329. See, also, Muldowney v. Railroad Co., 39 Iowa, 615-622, and Rogers, Expert Evidence, pp. 37, 47. In Martin v. Light Co., supra, we gave expression to the rule in these words: “It is an accepted rule that, while experts may testify as to what in their opinion may or may not have been the cause of a given result or condition, it is not permissible for them to give their opinion as to the ultimate fact which the jury is organized to determine. See Sachra v. Town of Manilla, 120 Iowa, 567 , and cases there cited. It is the province of the jury alone to draw ultimate conclusions. Largan v. Railroad, 40 Cal. 272; Perry v. Graham, 18 Ala. 822; Railroad v. Atteberry, 43 Ill. App. 80;Butler v. Railroad Co., 87 Iowa, 206 ;Muldowney v. Railroad Co., 39 Iowa, 615;Marcy v. Insurance Co., 11 La. Ann. 748;Wilson v. Reedy, 33 Minn. 503, 24 N. W. 191;Briggs v....