Smith v. Mo., K. & T. R. Co., Case Number: 9177

• Court: Supreme Court of Oklahoma
• Writing for the Court: GALBRAITH, C.
• Citation: 1918 OK 679,185 P. 70,76 Okla. 303
• Decision Date: 03 December 1918
• Docket Number: Case Number: 9177
• Parties: SMITH v. MISSOURI, K. & T. R. CO.

1918 OK 679
185 P. 70
76 Okla. 303

SMITH
v.
MISSOURI, K. & T. R. CO.

Case Number: 9177

Supreme Court of Oklahoma

Decided: December 3, 1918

Syllabus

¶0 1. Witnesses--Cross-Examination--Scope.

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.

2. Appeal and Error--Prejudicial Error--Improper Cross-Examination.

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.

3. Damages--Personal Injuries--Aggravation by Unskillful Treatment.

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.

Error from District Court, Oklahoma County; Edward Dewes Oldfield, Judge.
Action by W. L. Smith against the Missouri, Kansas & Texas Railway Company. Judgment for defendant, and plaintiff bring error. Reversed and remanded, with directions.

Asp, Snyder, Owen & Lybrand, for plaintiff in error.

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

GALBRAITH, C.

¶1 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, Okla. 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 ears, 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 employes 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 employes 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 knew or could have known of the dangerous position in which plaintiff was placed, but that said employes 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 employes of the defendant company could have, by the exercise of reasonable care and diligence, avoided the injury of the plaintiff."

¶2 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.

¶3 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"

¶4 --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."

¶5 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...