Smith v. Minneapolis Street Railway Company

• Citation: 97 N.W. 881,91 Minn. 239
• Decision Date: 08 January 1904
• Docket Number: 13,689 - (114)
• Parties: HOWARD W. SMITH v. MINNEAPOLIS STREET RAILWAY COMPANY
• Court: Supreme Court of Minnesota (US)

97 N.W. 881

91 Minn. 239

HOWARD W. SMITH v. MINNEAPOLIS STREET RAILWAY COMPANY

Nos. 13,689 - (114)

Supreme Court of Minnesota

January 8, 1904

Appeal by plaintiff from an order of the district court for Hennepin county, Harrison, J., granting a motion for a new trial. Affirmed.

SYLLABUS

New Trial -- Lack of Evidence.

Fitger v. Guthrie, 89 Minn. 330, to the effect that this court will not, in the absence of some expression of the trial court to that effect, presume that an order granting a new trial was based upon the ground that the verdict was not sustained by the evidence, followed.

Hypothetical Question.

Hypothetical questions to expert witnesses should embody substantially all the facts relating to the subject upon which the opinion of the witness is asked. A new trial held properly granted in this case for an error in overruling an objection to a hypothetical question not conforming to this rule.

F. N Hendrix and J. Van Valkenburg, for appellant.

Koon Whelan & Bennett, for respondent.

OPINION

BROWN, J.

Action to recover damages personal injuries alleged to have been caused by the carelessness and negligence of defendant. Plaintiff had a verdict in the court below, and appealed from an order granting a new trial.

The court below granted a new trial without assigning any reasons therefor, and, as the motion upon which the order was based asked for a new trial upon grounds other than that the verdict was not sustained by the evidence, we are limited in the consideration of the case to the question whether any errors of law occurred on the trial which justify the order. Fitger v. Guthrie, 89 Minn. 330, 94 N.W. 888. It was the intention of the legislature in the passage of the statute construed in that case to require the trial court expressly to state in its order granting a new trial whether it was based upon the fact that the verdict was not justified by the evidence. In the absence of some expression of that kind in the order, this court cannot presume that it was so made.

Plaintiff was injured by one of defendant's cars as he was attempting to cross with his horse and carriage Hennepin avenue, in the city of Minneapolis. It was contended by him on the trial that the injuries received by him were of a very serious nature and permanent in character, and to prove his case in this respect he called as a witness Dr. Simpson, to whom, after numerous preliminary questions, the following question was put:

"Q. I may not understand, doctor. If there had been nothing the matter with his right ear, and Mr. Smith, before this accident which occurred on the twenty-sixth day of August, if there had previously to this time been nothing the matter with his ear, and he had had no difficulty with his hearing, and the accident occurred as it has been stated here (I don't know as you have heard it), by his being thrown out of a carriage, and directly afterwards picked up, and unconscious for twenty-four hours, remaining in the hospital for eight or ten days, and the ear being in the condition it was when he came to you on the second of October, in your opinion would the trouble or injured ear be the result of the accident? Mr. Bennett: I object to that as incompetent irrelevant, and immaterial, and no proper foundation laid. ...