The Chicago v. Sheldon

• Decision Date: 23 December 1897
• Docket Number: 238
• Citation: 51 P. 808,6 Kan.App. 347
• Court: Kansas Court of Appeals
• Parties: THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY v. S. SHELDON

51 P. 808

6 Kan.App. 347

THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY v. S. SHELDON

No. 238

Court of Appeals of Kansas, Northern Department, Central Division

December 23, 1897

December 23, 1897.

Error from Republic District Court. Hon. F. W. Sturges, Judge. Reversed.

Judgment reversed and cause remanded.

M. A Low, W. F. Evans and J. E. Dolman, for plaintiff in error.

B. T Bullen and W. T. Dillon, for defendant in error.

OPINION

MCELROY, J.

This was an action to recover for personal injuries received by defendant in error in a railway accident. Judgment in the lower court was for defendant in error, who was plaintiff there.

Doctor Hoover, a witness for plaintiff below, referring to an examination of defendant in error made some weeks after the accident, said:

"I ascertained from the examination of the man, from the history that I got from the family, and from what I saw of the man, that he was suffering from spinal trouble."

Plaintiff in error moved that this be stricken out because it was incompetent, irrelevant, and hearsay. This motion was denied. A physician testifying as an expert should not be allowed to base his opinion of the condition of the party to any extent upon the statements of third persons. It does not appear what the witness learned from talking with the family, nor to what extent the family gave him a history of the man or his ailment. The motion of the Railway Company to strike out the evidence should have been sustained, and the evidence excluded from the jury. Heald v. Thing, 45 Me. 392. Rogers's Expert Testimony, § 47. Wetherbee's Ex'rs v. Wetherbee's Heirs, 38 Vt. 454.

Complaint is made that the court erred in admitting evidence of Doctor Wilcox, as follows:

"Q. Doctor, in reply to this question I would ask you whether an injury received at a railway wreck, wherein the patient was frightened, jammed up and badly shocked, the patient having no kidney trouble known to him prior to that time, then being affected by a general breaking down of the nervous system, pains along the lumbar region of the back, slight pains in the abdomen, bowels constipated, bladder partially paralyzed, so as to retain the urine, loss of sensation in the lower extremities, impaired circulation, the lower limbs inclined to shrivel up, cold feet, I will ask you now whether or not, in your opinion, a patient in that condition, then, who three weeks after having been in a railway wreck which I have described, whether or not the ailment which I have mentioned was the direct result of the injury in the railway wreck? A. That was my opinion at the time.

"Q. What is your opinion now, doctor, on the hypothetical question? Would the wreck be the cause of the ailment? A. Yes, I believe so."

And the following evidence of Doctor Hoover:

"Q. What in your opinion would be the cause? A. Probably from the injury he received at the time of the wreck."

And the following evidence of Doctor Kamp.

"Q. Now, doctor, I will ask you if, in your opinion, the shock and bruises and jamming of the patient mentioned, received in a railway wreck mentioned, would be the cause of such ailments, in your opinion, he not having passed through any other shock, fright or bruises prior to that time nor had any known kidney trouble? A. If he had no other disease, if there were no symptoms of any other disease prior to that time, yes."

The court permitted the witnesses to assume the province of the jury, and to determine whether the condition of the defendant in error and his ailments were the direct results of the collision in question. This was a matter exclusively for the jury to determine and not a matter to be proven by expert testimony. The jury was as competent to determine this question from all the evidence as were the witnesses, and they should have been permitted to do so without being required to take the opinions of the witnesses in preference to their own. It might have been proper to have asked the witnesses what would be the probable effect of a bruise or jar or injury upon the head or body, or whether or not the condition of the defendant in error resulted from a wound or injury of some kind. It would have been...