Smith v. Missouri, K. & T. Ry. Co.

Citation185 P. 70,76 Okla. 303,1918 OK 679
Decision Date03 December 1918
Docket Number9177.
PartiesSMITH v. MISSOURI, K. & T. RY. CO.
CourtSupreme Court of Oklahoma

On Rehearing, November 18, 1919.

Syllabus by the Court.

An attorney has no right to cross-examine a witness, except as to facts and circumstances connected with the matter stated in his direct examination. If he wishes to examine him on other matters, he must do so by making the witness his own and calling him as such in the subsequent progress of the case.

From an examination of the entire record in the instant case we are of the opinion that the improper cross-examination of the plaintiff's witnesses did probably result in a miscarriage of justice, and was sufficient grounds for awarding a venire facias de novo.

On Rehearing.

Where a party has used reasonable care in selecting a physician or surgeon, but owing to unskillful treatment the injury has been increased, the party causing the original injury will be held liable in damages for the latter; and the issue is not whether the physician or surgeon was, in fact, a man of high skill, but whether he bore such reputation as would justify the plaintiff in calling for his services under the obligation to exercise good faith in the choice of his physician.

Commissioners' Opinion, Division No. 2

Error from District Court, Oklahoma County; Edward Dewees Oldfield Judge.

Action by W. L. Smith against the Missouri, Kansas & Texas Railway Company. Judgment for defendant, and plaintiff brings error. Reversed and remanded, with directions.

Asp Snyder, Owen & Lybrand, of Oklahoma City, for plaintiff in error.

Clifford L. Jackson, W. R. Allen, and M. D. Green, all of Muskogee for defendant in error.


This is an appeal by the plaintiff in error, who was plaintiff below, from the judgment of the trial court, rendered in favor of the defendant in error, who was defendant below, upon the verdict of the jury in an action for personal injuries. The plaintiff at the time of the injury complained of was 51 years of age, and was engaged in selling insurance and in buying cotton seed, and was earning $150 per month, and lived at the city of Sulphur, Okl. The petition alleges the cause of action as follows:

"That on February 3, 1915, the plaintiff, Smith, went to the passenger depot of defendant company at Cleveland, Oklahoma, and purchased a ticket from Cleveland to Tulsa; that while he was waiting at said station for the passenger train due at 3 o'clock in the afternoon, and was, in law, a passenger of said company, his attention was attracted by a freight train switching and coupling cars on the side track at said station at Cleveland and immediately opposite the platform and depot; that said freight train and engine thereon were making excessive amount of noise by the ringing of bells, bumping of cars, escaping and expulsion of steam, and in other ways, so that he was unable to and did not hear the passenger train coming into the said station; that the passenger train without warning was, by the employés of the defendant company, run into the station at a rapid rate of speed, and ran against another person standing on the platform, and hurled him against the plaintiff, knocking plaintiff against the engine of said passenger train and to the station platform, dislocating the right arm of the plaintiff, causing his head to strike against the platform, and thereby permanently injuring the plaintiff, rendering his right arm useless, and destroying the hearing of one ear; that the employés of the defendant company in charge of the engine pulling the passenger train could for a distance of 300 feet or more see the plaintiff and such other person standing upon said platform, and know or could have known of the dangerous position in which plaintiff was placed, but that said employés negligently failed to give the plaintiff any warning by ringing the bell or blowing the whistle or otherwise, and negligently failed to take any measures to stop or slack the speed of the train, or otherwise avoid the injury to plaintiff, all as was their duty to do, after seeing and knowing of the plaintiff's peril; and that said employés of the defendant company could have, by the exercise of reasonable
care and diligence, avoided the injury of the plaintiff."

The answer of the railway company was a general denial and a plea of negligence on the part of the plaintiff contributing to his injury, and the answer of the receivers of the company was of a similar nature. Upon the issues thus formed the case was submitted to the jury and a verdict returned for the defendant.

There are numerous assignments of error set out in the petition in error and supported by argument and voluminous citations of authorities in the brief, but as we view this case it is only necessary to consider two of these assignments, namely, the sixth, which reads:

"Said court erred in permitting the defendant over the objection and exception of the plaintiff, to extend the cross-examination of plaintiff's witnesses beyond the scope covered in their direct examination"

-and the ninth, which reads:

"Said court erred in the abuse of his discretion by which the plaintiff was prevented from having a fair trial."

The record discloses that immediately after the accident the plaintiff was conveyed to a hotel at Cleveland and a physician called, and his injured arm was treated and bandaged, and on the advice of this physician he returned to his home at Sulphur the following day; that there he called his family physician and a few days later a surgeon at Sulphur was called in, and these doctors treated the injury for something like a year; when a cure was not affected at the end of this time, another physician of a different school of medicine was called, and on his advice the plaintiff was sent to Oklahoma City, where an X-ray of his arm was taken, which disclosed a broken bone and a dislocated joint; that on the advice of the physician who had directed him to go to Oklahoma City he employed two or three specialists to treat the arm, who subsequently performed several operations thereon. When these specialists were called at the trial to testify in behalf of the plaintiff as to the character of his injury and the probable duration thereof, the defendant, on cross-examination of these witnesses, over the objection of the plaintiff, was permitted to attempt to show that the treatment that the plaintiff received from the doctors first called by him was not the proper treatment, and this character of cross-examination was carried to such an extent as to introduce a collateral issue in the case, one not raised by the pleadings, and the issue on trial, namely, the liability of the railway company for the plaintiff's injuries, was lost sight of, and the trial permitted to develop into a trial of the doctors. By reason of this irregular conduct of the trial the real issue before the court and jury was so obscured that the collateral issue was the one really tried by the jury, and upon which the verdict was returned for the railway company. Excerpts from the examination of Dr. Cunningham, one of the witnesses called by the plaintiff, will disclose the character of the cross-examination complained of:

"Q. Doctor, as a surgeon and a practicing physician have you been called-if you had been called upon to treat the plaintiff at the time he had a dislocation of the radius and a compound fracture of the ulna, would you have attempted to reduce the fracture of the ulna without reducing the dislocation of the radius?
By Mr. Asp: Objected to as improper, incompetent, and immaterial; not proper cross-examination.
By the Court: Overruled.
By Mr. Asp: Exceptions.
A. What I did in this case would answer the question as near as I could answer it.
Q. You took the position in this case that anything you did on the ulna would be wasted until the dislocation of the radius was reduced? A. I don't know what I thought. I just went ahead and did what I did because I thought that was good treatment.
Q. If the physician who treated this case originally attempted to reduce the fracture and ignored the position of the radius, would you say that was good practice?
By Mr. Asp: Objected to as incompetent, immaterial, and irrelevant; not proper cross-examination.
By the Court: Overruled.
By Mr. Asp: Exceptions.
A. I don't know what he had to deal with when he treated it.
Q. Now, Doctor, if this plaintiff suffered a broken ulna, and this part was really dislocated, and the physician reached the plaintiff within an hour or an hour and a half after the injury, could he have detected from an external examination that the radius was dislocated? (Same objection; same overruling; exceptions.) A. I don't want to say what another man could find out.
Q. What could you find out had you been in his place? A. I found the condition as I showed it to you.
Q. This condition would have been much more easily discovered immediately after the injury than when you discovered it, would it not? A. I don't know. Sometimes they swell up very quickly and get pretty large. May not have been so large, and may not have been so easy to discover it, and then again it might have been very easily discovered.
Q. Then ordinarily, Doctor, what would you say? A. Just what I said.
Q. What did you say? A. I tell you that the conditions that I found, and saw in this plaintiff, is what I would

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