Summerlin v. Carolina & N. W. Ry. Co

• Decision Date: 01 December 1903
• Citation: Summerlin v. Carolina & N. W. Ry. Co, 45 S.E. 898, 133 N.C. 550 (N.C. 1903)
• Court: North Carolina Supreme Court
• Parties: SUMMERLIN. v. CAROLINA & N. W. RY. CO.

45 S.E. 898

133 N.C. 550

SUMMERLIN.

v.CAROLINA & N. W. RY. CO.

Supreme Court of North Carolina.

Dec. 1, 1903.

EVIDENCE—HYPOTHETICAL QUESTIONS—FORM —HARMLESS ERROR—EXPERT WITNESSES—QUALIFICATION—OBJECTIONS.

1. In an action for personal injuries, in which it was admitted that one of plaintiff's legs wasinjured, and that she had fallen from the rear platform of defendant's train several months before the trial, but defendant denied that the injuries were caused by the fall, a hypothetical question, inquiring to what an expert witness would attribute plaintiff's injuries if she fell from the platform as alleged, was objectionable as invading the province of the jury.

2. In an action for personal injuries, plaintiff asked an expert witness a hypothetical question as to what witness would attribute plaintiff's injuries to, in case it was found she fell from the rear of defendant's train, as alleged. An objection was sustained to this question, but subsequently the witness was asked whether plaintiff's condition could have been caused by such a fall, and the witness replied that it could have been so caused, or could have been produced in various other ways. Held, that by the second question plaintiff got the full benefit of the evidence sought to he elicited by the other question, so that the sustaining of objections to it, if error, was harmless.

3. Where a witness has testified as an expert to several material matters, a general objection to a particular question thereafter is insufficient to raise the question of his competency as an expert.

Appeal from Superior Court, Gaston County; Shaw, Judge.

Action by Effie B. Summerlln against the Carolina & Northwestern Railway Company. From a judgment for defendant, plaintiff appeals. Affirmed.

A. G. Mangum, for appellant.

J. H. Marion, O. F. Mason, and Geo. W. Wilson, for appellee.

WALKER, J. This action was brought by the plaintiff, who is a minor, and sues by her next friend, to recover damages for injuries alleged to have been caused by the defendant's negligence. The case turns upon the correctness of the rulings of the court upon the evidence, and so much of the testimony of the plaintiff, as we need consider, was as follows: J. W. Summerlin testified that he and his wife and child (the plaintiff) were passengers on the defendant's train from Gastonia, in this state, to York-ville, S. C, on the 13th day of June, 1901, and that when the train arrived at Yorkville they tried to get off "as quick as they could, and he and the child got off, but his wife was at the door, and was about to step off the car, when the train gave a jerk, and she fell on the child and hurt it The train moved forward as she attempted to leave the car, and she was thrown off behind and between the rails, and fell on the child. The child was four years old last August It has not as good use of one of its legs as of the other, one being smaller than the other." He first noticed the injury to her limb two or three months after the fall, when he and his wife went to get a pair of shoes for the child. He returned from Yorkville the following September. No physician was called to examine the child until June, 1902, when Dr. Reid examined it, about the time this suit was brought. Dr. Reid, witness for the plaintiff, testified that he examined the child in June, 1902, and saw that it had a limping gait One of its legs was smaller than the other, but otherwise it was healthy. He moved the limbs, and found a shortening behind, and some other defects. There was the appearance of a green-stick fracture after the limb had time to heal. It was not a complete fracture. Dr. Glenn was present when he examined the child, and assisted in the examination. He examined it again about a month before the trial, when he found that the muscles had improved a good deal, and the limb looked healthier. The plaintiff then proposed to ask this witness the following question: "If the jury find from the evidence that on the 13th of June. 1901, the mother of this child had it in her arms and on the platform of the rear end of the railroad car, and fell from that platform to the roadbed, and during last summer you made an examination of the child, and found the condition of the child's left leg and hip as you testified, to what would you attribute those conditions?" The defendant objected to this question, the objection was sustained, and the plaintiff excepted. The plaintiff then proposed to ask this witness another question, in which the facts were somewhat differently stated, but which was substantially the same in form and substance as the first question; and it was also excluded on objection by the defendant, and the plaintiff excepted. The plaintiff then asked the witness the following question: "If the jury find from the evidence that on June 13, 1901, the mother of this child, with the child in her arms, fell from the rear end of a platform of a caboose car to the roadbed below, and fell on the child, and if the jury further find that during the following summer the condition of the leg and hip of the child was as you have described in your testimony, could not these conditions, in your opinion, have been caused by such a fall?" The defendant objected to this question, but the objection was overruled, and the witness answered it as follows: "Yes; it could have been caused by a variety of falls, and could have been less or greater than this. It would certainly have been sufficient to produce a fracture. The fall might not have produced the injury. That part of the child might not have come in contact with anything to cause it." Dr. Sloan, a witness for defendant testified to facts tending to contradict Dr. Reid. He stated that he found weakness in the ankle, and slight weakness in the knee. In the thigh there was nothing more than the un-development of the muscles. There was no evidence of a green-stick fracture. The trouble was congenital. The defendant then proposed to ask the witness the following question: "If the jury should find that on the 13th day of June, 1901, this child had a fall, and sustained a green-stick fracture, and no evidence of that fracture had been discovered by the parents of the child for several months afterwards, would you, inyour opinion, say that had anything to do with the weakened condition of the ankle or the weakened condition of the knee that you found on the child?" To this question the plaintiff objected, the objection was overruled, and the plaintiff excepted. The plaintiff then introduced Dr. Glenn, who testified to facts tending to corroborate Dr. Reid, and he proposed to ask this witness two questions, each of which was the same in substance and effect, if not in form, as the questions put to Dr. Reid, and which had been excluded, as hereinbefore stated, except that one of the questions required the witness to base his opinion upon the fact as to the "condition of the child at that time" (the time of the mother's fall from the car), in addition to the other supposed facts inserted in the several questions; there being no evidence as to the child's condition at that time. The questions asked Dr. Glenn by the plaintiff were also excluded upon objection by the defendant, and the plaintiff again excepted. The plaintiff then proposed to...