The Louisville, New Albany and Chicago Railway Company v. Falvey

• Decision Date: 23 November 1885
• Docket Number: 12,203
• Citation: 3 N.E. 389,104 Ind. 409
• Parties: The Louisville, New Albany and Chicago Railway Company v. Falvey
• Court: Indiana Supreme Court

3 N.E. 389

104 Ind. 409

The Louisville, New Albany and Chicago Railway Company v. Falvey

No. 12,203

Supreme Court of Indiana

November 23, 1885

Reported at: 104 Ind. 409 at 430.

From the Tippecanoe Circuit Court.

Judgment affirmed.

G. W Easley, G. W. Friedley, W. F. Stillwell, S. O. Bayless and W H. Russell, for appellant.

B. W. Langdon, T. F. Gaylord and J. F. McHugh, for appellee.

OPINION

Elliott, J.

The appellee's complaint alleges that she was received as a passenger on one of the appellant's trains and was injured in a collision caused by the negligence of the appellant's servants.

The first question in logical order arises upon the rulings made on the admission of the testimony of Dr. R. M. O'Ferrall.We are satisfied that the appellant is not in a situation to successfully complain of these rulings, for it obtained all it properly asked upon this subject.This we say for the reason that the appellee consented that the appellant's motion to strike out the testimony might be sustained; to this the former objected and withdrew its motion, but, notwithstanding the withdrawal of the motion, the court, upon the request of the appellee, did strike out all of the testimony objected to by the appellant.As the latter received all it asked, it has no just grounds of complaint.

A party seeking an opinion from an expert witness may assume in his hypothetical question such facts as he deems proved by the evidence.A recent author says, of such questions: "If framed on the assumption of certain facts, counsel may assume the facts in accordance with his theory of them, it not being essential that he should state the facts as they actually exist."Rogers Expert Testimony, 39.Another author thus states the rule: "It is the privilege of the counsel in such cases to assume, within the limits of the evidence, any state of facts which he claims the evidence justifies, and have the opinion of experts upon the facts thus assumed."Lawson Expert and OpinionEv. 153.In the recent case of Quinn v. Higgins,63 Wis. 664, 24 N.W. 482, the Supreme Court of Wisconsin said: "The rule in that respect must be that, in propounding a hypothetical question to the expert, the party may assume as proved all facts which the evidence in the case tends to prove, and the court ought not to reject the question on the ground that, in his opinion, such facts are not established by the preponderance of the evidence.What facts are proved in the case, when there is evidence to prove them, is a question for the jury and not for the court.The party has the right to the opinion of the expert witness on the facts which he claims to be the facts of the case, if there be evidence in the case tending to establish such claimed facts, and the trial judge ought not to reject the question because he may think such facts are not sufficiently established."This court has often declared the rule in substantially the same language as that employed by the authors from whom we have quoted.Davis v. State,35 Ind. 496(9 Am. R. 760);Bishop v. Spining,38 Ind. 143;Guetig v. State,66 Ind. 94(32 Am. R. 99);Nave v. Tucker,70 Ind. 15;Elliott v. Russell,92 Ind. 526;Goodwin v. State,96 Ind. 550, vide authorities cited, pp. 555, 574.

The appellee's counsel had a right to assume such facts as they deemed proved, and it was for the jury, as we have many times decided, to determine whether the facts were or were not justly assumed.Goodwin v. State, supra,vide authorities cited p. 561;Elliott v. Russell, supra;Vanvalkenberg v. Vanvalkenberg,90 Ind. 433;Fulwider v. Ingels,87 Ind. 414;Guetig v. State, supra.

Some of the facts assumed in the hypothetical questions propounded to Dr. O'Ferrall were eliminated by the subsequent ruling of the court upon the appellee's motion to strike out part of his testimony, but enough facts remained to entitle his opinion to go to the jury under the rule declared in the authorities to which we have referred.Where there are facts upon which an opinion may be properly based, it is not error to refuse to strike out the entire opinion, for such an opinion should go to the jury for what it is worth, although the elimination of some of the facts may weaken the value of the opinion.But if we are wrong in this view, still no harm resulted, for the same facts testified to by Dr. O'Ferrall were substantially proved by other witnesses.Whatever view is taken of the ruling on Dr. O'Ferrall's testimony, no substantial harm was done the appellant.Strength is added to this view by the further fact that the court in its instructions, in very clear and forcible terms, directed the jury to disregard that part of the testimony to which the appellant's motion to strike out was addressed.

The question asked Dr. Hallihan was not answered, but other questions were substituted, and it is quite clear that no harm resulted from the bare asking of the question, even though it was an improper one.

Dr. Burke was asked: "State to the jury what fact you observed, what, if any, experiments you made, and what you learned to be the now condition, or the then condition, of the eyes and ear, and how it was done."We can perceive no objection to this question, for it surely is always competent to ask a medical witness what observations he made and what was the condition of the patient he was called upon to examine.It makes no difference, so far as concerns the competency of the testimony, what the purpose of the examination was, although that fact might, perhaps, exert some influence upon the credibility of the witness.If the physician did in fact make an examination, his observations of the condition of the person examined by him are unquestionably competent.

We have again and again decided that objections to testimony must be specifically stated to the trial court, and that only such objections as were stated to that court can be considered on appeal.In the bill of exceptions the objection to a part of Dr. Webster's testimony is thus stated: "To which question the defendant objected because he has not said that he based his opinion on what the plaintiff told him, and also as being irrelevant, incompetent and immaterial, and not cross-examination, which objection the court overruled, to which ruling of the courtthe defendant at the time excepted."

These are the only grounds of objection which we can consider, and we find no merit in them.It was the right of the counsel of appellee, in cross-examining Dr. Webster, to test his knowledge and skill as a medical expert, and also to ascertain the grounds upon which he based his opinion.This right was not abridged by the answer of the witness that he did not take into account the statements of the appellee, since, to hold otherwise, would enable a medical witness to shut off all investigation as to his methods of examination by a general statement that he did, or did not, take certain matters into consideration, and to allow this would be to destroy one of the great purposes of a cross-examination.We can not doubt that a cross-examining counsel has a right to know how a medical investigation was conducted, and what method was pursued.He has a right to know this for the purpose of ascertaining whether the examination was a thorough one, and also for the purpose of discovering whether skill and care were used.

So far as the statement of the objection urges that the testimony was incompetent and immaterial, it is not entitled to consideration on appeal, for the reason that it is not sufficiently specific.General objections of this character present no available questions.Over v. Schiffling,102 Ind. 191, 26 N.E. 91;Shafer v. Ferguson,103 Ind. 90, 2 N.E. 302;Bottenberg v. Nixon,97 Ind. 106;Jones v. Angell,95 Ind. 376;Lake Erie, etc., R. W. Co. v. Parker,94 Ind. 91;Harvey v. Huston,94 Ind. 527;McClellan v. Bond,92 Ind. 424;Stanley v. Sutherland,54 Ind. 339.

In cross-examining a medical expert, it is proper for the cross-examining counsel to state hypothetical cases for the purpose of testing the skill and knowledge of the witness.Davis v. State, supra,seep. 498; Rogers Expert Testimony, 50.It was, therefore, proper for the appellee, in cross-examining Dr. Webster, to state a hypothetical case and ask his opinion upon it.

Where there is competent testimony given both in the examination in chief and on cross-examination, a motion made by the party by whom the witness was called to strike out all of such testimony should be overruled.Wolfe v. Pugh,101 Ind. 293;Elliott v. Russell, supra.It is the duty of the party to select the competent from the incompetent testimony, and he will not be allowed to impose that burden on the trial court.Cuthrell v. Cuthrell,101 Ind. 375.This is not a mere arbitrary technical rule, but is one founded on solid principle and essential to the fair administration of justice.It is in harmony with the well settled rule of practice, everywhere obtaining, that the motion of a party must point out the specific testimony objected to, and indicate the character of the objections; and it is also in harmony with the familiar rule, that if a demurrer is addressed to an entire pleading it must be overruled, although the pleading may be bad in part.

We have no doubt that much of the testimony objected to was competent.We regard it as firmly settled that declarations indicative of present pain are admissible.No authority maintaining a different doctrine is referred to, and we know of none.Much of the testimony which appellant sought to have rejected was as to statements made to medical witnesses indicative of present pain, and this testimony was clearly competent.

The doubt in our minds is as to whether any part of the testimony objected to was...