Strever v. Woodard

• Decision Date: 05 June 1913
• Citation: 141 N.W. 931,160 Iowa 332
• Parties: GEORGE STREVER, Appellant, v. JOHN WOODARD
• Court: Iowa Supreme Court

141 N.W. 931

160 Iowa 332

GEORGE STREVER, Appellant, v. JOHN WOODARD

Supreme Court of Iowa, Des Moines

June 5, 1913

Appeal from Wright District Court.--HON. C. G. LEE, Judge.

ACTION for damages resulted in a judgment of $ 1 in favor of plaintiff, from which he appeals.

Reversed.

D. C Chase, for appellant.

S Flynn and McGrath & Archerd, for appellee.

OPINION

LADD, J.

The plaintiff was on his way to Woodstock in a single-seated one-horse buggy going south, on December 29, 1910. His horse was trotting along when an automobile operated by Robinson approached from the opposite direction, and passed at a distance of between sixteen and twenty feet as estimated by Robinson, or thirty or forty feet as testified by plaintiff. The defendant with his automobile, containing four or five passengers, came up behind plaintiff's rig, and when Robinson was about opposite, turned his car to go between, when the fender struck the back wheel of the buggy, lifting that side up, and caused plaintiff, with the cushion and blanket, to slip or fall out on the ground, and the horse, becoming frightened, went on to Woodstock. The plaintiff testified that he did not stop but had slowed up, and was corroborated by the testimony of Robinson. The defendant testified that plaintiff stopped his vehicle suddenly, as though to converse with Robinson, and his testimony is corroborated by that of the persons riding with him. In this action, recovery is sought on the ground that defendant was negligent (1) in running his car at an excessive rate of speed, (2) in failing to give warning of his approach, and (3) in not keeping far enough from plaintiff's vehicle to safely pass it without a collision, and that the injury occurred without fault on the part of the plaintiff contributing thereto. The defendant denied having been guilty of any negligence, and alleged that the collision was due to the carelessness of plaintiff in suddenly stopping his horse without any notice or warning to the defendant. The evidence was such as to carry these several issues to the jury. This is apparent from even a casual examination of the record, and for this reason it is not necessary to review the evidence.

I. The plaintiff was attended by Dr. McCauliff. He testified that upon examination made January 3, 1911, he discovered a contusion on the left side of plaintiff's head, immediately above the temple, with swelling one and one-half or two inches in diameter, somewhat discolored and sensitive to the touch, and also a darkening or contusion of the left lip without much swelling, and that the patient said he suffered from a severe headache and was troubled with insomnia; that he called on him eight or nine times during that month, and that the headaches became more severe in a few days after his first call and the insomnia more difficult to overcome; that he was of opinion that the witness suffered severe pain from his injuries, and that after the time mentioned he was consulted by the plaintiff about once a week for another month; that he complained of pains in his head during the entire time and of impairment in his hearing and sight. He was then asked "whether or not a violent blow upon the head or concussion from falling, such as would produce this swelling that you speak of on the head, might or might not have any effect upon the hearing, or the head itself, of a permanent nature." "A. It might." "Q. To what did you ascribe professionally the continuance of these headaches described that Mr. Strever complains of?" An objection as incompetent, immaterial, and irrelevant was sustained. "Q. Considering the history of the case as detailed to and what you observed of those injuries in January, what would you say was the cause of these headaches?" A like objection was sustained. "Q. State whether or not a violent blow on the head in the place where you saw his injury would cause continual headaches such as Mr. Strever had or not." An objection as leading and suggestive, incompetent, and immaterial was sustained. "Q. I wish you would now state from your knowledge of the history of the case and physical condition of Strever as a physician, whether these pains that you have described or the headaches were or were not the result of injury upon his head, that you have referred to in your testimony." Same objection was sustained. "Q. I now refer to all of this." A like objection was sustained, and the court remarked: "This is a question for the jury; they must draw that conclusion, or they must fail to draw it." Exceptions were saved to each of the above rulings, and all were erroneous. They called for opinions which it was competent for an expert, if possessed of sufficient information, to answer. The witness had fully qualified, and the rule is well established that though a physician may not testify what the cause of an injury actually was, his testimony as to what might have, within reasonable probability, caused it is received. Thus as to whether an injury might have resulted from an alleged concussion by being thrown from a carriage, Quinn v. O'Keeffe, 9 A.D. 68 (41 N.Y.S. 116), or from a blow, 12 Am. & Eng. Ency. Law (2d Ed.) 447. In Barker v. Ry., 51 W.Va. 423 (41 S.E. 148, 90 Am. St. Rep. 808), testimony of a physician that the plaintiff's condition might have been caused by shock, a fall, or anything that produces a shock to the spinal column was held admissible. See, also, Bennett v. Fail, 26 Ala. 605; Thompson v. Bertrand, 23 Ark. 730; Mo. P. Co. v. Lovelace, 57 Kan. 195 (45 P. 590); Oliver v. Ry., 65 S.C. 1 (43 S.E. 307); Matteson v. Ry., 62 Barb. 364. The subject was one not familiar to the jury, and it was competent to call for expert opinion to aid in tracing the casual connection between plaintiff's ailments and the efficient cause; and, as a nervous temperament and a fall from a load of tile nearly four months previous were suggested in cross-examination as such cause, the testimony of the physician who attended him during his illness as to what might have occasioned his suffering was material, and should not have been excluded. The inquiries were not vulnerable to the objection as leading, nor did they call for an opinion as to the ultimate issue to be determined by the jury. Whether he was in fact injured by the fall from the buggy would necessarily be included in the verdict of the jury, but was not determinative of the case.

II. In an instruction otherwise unexceptionable, the court told the jury that if an ordinarily careful and prudent man, situated as plaintiff was and in like circumstances, would "have looked and listened or given warning of his intention to stop in the highway, or would have driven out of the beaten track...