Tompkins v. W.

• Decision Date: 07 July 1888
• Citation: 56 Conn. 478,16 A. 237
• Parties: TOMPKINS et ux. v. WEST et al.
• Court: Connecticut Supreme Court

16 A. 237

56 Conn. 478

TOMPKINS et ux.

v. WEST et al.¹

Supreme Court of Errors of Connecticut.

July 7, 1888.

Appeal from superior court, New London county; PHELPS, Judge.

Action by John Tompkins and Mary Tompkins, his wife, against Henry E. West and another, for injuries to the person of Mary Tompkins, occasioned by negligence of defendants' servant. Judgment for plaintiffs, and defendants appeal.

R. Wheeler and S. Lucas, for appellants. A. Brandegee, for appellees.

LOOMIS, J. This is a suit to recover damages for a personal injury to Mary Tompkins, wife of the plaintiff John Tompkins, caused by the negligence of the defendants' servant in the management of a horse and baggage wagon while being used in the business of the defendants. Upon the trial of the case to the jury the plaintiffs claimed that Mrs. Tompkins had been internally injured in the chest, and that the injury produced frequent and serious hemorrhages, and that before the accident she had been generally healthy and strong. On the part of the defense one of the most prominent claims was that she could not have been internally injured, as she claimed, because there were no visible external marks of injury on her person. To sustain this claim the defendants offered Dr. Paddock as a medical expert. On his cross-examination he was asked this question: "In your opinion, as a medical man, can or cannot the tissue of the lungs be broken by outside pressure, strong, violent and sudden, if at the time the lungs were inflated with air, so as to produce hemorrhage without extravasation or visible external cause?" To this question the counsel for the defense objected, on the ground that it was leading, and was not legitimate cross-examination of anything as to which the witness had been inquired of or had testified, and because the testimony should have been offered in chief, and also because it was a merely hypothetical question, not based on proved or admitted facts. The plaintiffs' counsel thereupon offered to make the witness his own. In the exercise of its discretion the court overruled the objection that the question was leading, and was not proper cross-examination, and that the testimony should have been offered in chief, and allowed it to be put, on the ground that it called (and the court found that it did) for an opinion upon facts admitted or claimed to have been proved in the case. The answer of the witness was in the affirmative. This finding of the court would seem to remove the foundation of every objection made by the defendants' counsel. The only objection urged in the argument before this court was that no evidence had been actually offered to prove that the lungs of Mrs. Tompkins were at the precise moment of the injury inflated with air. This was undoubtedly true, for the formal introduction of any such evidence would have been not only absurd, but practically impossible. The question objected to could not have been understood as referring to any special or artificial inflation of the lungs, but only to such inflation as would occur during the regular process of respiration. As matter of common knowledge, it was proper to assume as a fact that the lungs must have been so inflated at intervals of a few seconds only, and it would follow from this that Mrs. Tompkins' lungs might have been inflated at the precise moment of the collision. The question, having been answered in the affirmative, tended directly to impair the defendant's claim that she could not possibly have been injured as she claimed, in the absence of external marks of violence upon her person.

The other ruling, as to the admission of evidence which the defendants complain of, is stated in the finding as follows: The plaintiffs called in chief, partly as an expert and partly as one of the physicians who professionally attended Mrs. Tompkins after her injury, Dr. Nelson, of New London, and asked him certain technical medical questions, reading them from a standard medical authority, in order to make the question clearly intelligible to the witness. The defendants' counsel objected to that mode of inquiry. The plaintiffs' counsel withdrew the questions and answers, and verbally and from memory put them in substantially the same language. The counsel for the defendants objected, but the court overruled the objection. It does not appear what the objectionable questions were other than that they were "medical and technical." The book read from was a "standard medical authority." The motive was to "make the question more clearly intelligible." It is to be presumed that the question was relevant to the issue, inasmuch as the only objection mentioned was to the mode of inquiry. As that mode was altered by the counsel for the plaintiffs in deference to the objection, we think the counsel for the defendants ought to have acquiesced. But, had the mode been adhered to, we see no well-founded objection to it under the circumstances. If a question is in itself proper in form, and relevant to the issue, it is not of the slightest consequence how it was suggested to the mind of the interrogating counsel, and whether it was read from a book or drawn from the store-house of memory, and whether it had reposed in the memory five minutes or five years would seem equally immaterial. To require of counsel a learning in the...