Union Pac. R. Co. v. McMican

• Decision Date: 07 March 1912
• Docket Number: 3,622.
• Citation: 194 F. 393
• Parties: UNION PAC. R. CO. v. McMICAN.
• Court: U.S. Court of Appeals — Eighth Circuit

194 F. 393

UNION PAC. R. CO. v. McMICAN.

No. 3,622.

United States Court of Appeals, Eighth Circuit.

March 7, 1912

S. C Douglass (R. W. Blair and Douglass & Watson, on the brief) for plaintiff in error.

J. E McFadden and S. G. Magee (O. Q. Claflin, Jr., on the brief) for defendant in error.

Before SANBORN and ADAMS, Circuit Judges, and WM. H. MUNGER, District judge.

WM. H MUNGER, District Judge.

In this case plaintiff, in August, 1909, was a passenger upon a mixed train of the defendant in the state of Kansas. The train consisted of some 22 freight cars, a baggage car, and a coach. The engine and some of the cars were detached when plaintiff took passage. He entered the coach, and while standing in the aisle at the end of a seat, making some memoranda, the engine, with some of the cars, backed up to the coach, the cars coming together, as claimed, with such a sudden jar as to throw him off his feet down in the aisle; that a lady with a child, standing in the aisle some few feet from him, was also thrown down, falling upon him, from which he sustained, as alleged, internal injuries. A trial was had resulting in a verdict for the plaintiff. Defendant brings the case here for review.

Among the errors assigned is that permitting a hypothetical question to be submitted to a doctor, called as a witness for plaintiff, who examined the plaintiff at the time of the trial, not for the purpose of treating him, but for the purpose of testifying in the case. The doctor had testified that plaintiff, at the time of the examination, gave to him a history of himself prior to the time he received his injuries, also a history of the injury (but did not testify what such history was), and that he made a physical examination of plaintiff. Thereafter plaintiff submitted to the doctor a hypothetical question, starting as follows:

'Now, Doctor, taking into consideration the history that Mr. McMican gave you of himself-- But before I ask that, I will continue the question. Prior to the date of the injury, that is the history he gave you of himself prior to the date of this injury, and the history he gave you of the injury, and the history he gave you of his condition and feelings subsequent to the date of the injury, and assuming that at the time of the injury.'

The question then continued with a statement of facts based upon evidence given in the case. The close of the question was:

'I will ask you to state, taking all these facts into consideration, whether or not the probability is that the condition you found existing at the time you made your examination, as you found it, could be or might be caused by the injury which he stated he had received?'

Counsel for defendant objected to the question, on the ground that it was not a proper hypothetical question, because it stated facts not in evidence, and asked the witness to base his answer on what the plaintiff told him at the time of the examination, which statements were not made under oath; also, upon the further ground that hypothetical questions should be based upon the sworn statement of witnesses as offered in evidence. The court, before ruling upon the question, inquired of the witness if the question fully covered the statements made:

'Does it fully cover and represent statements made in evidence, and the history of the case at the time the injury was sustained, or at the time of your examination? Does it fully and fairly represent the statement made to you and the history given to you by Mr. McMican at the time you examined him?' The witness answered:

'Yes; I think it does.'

The court thereupon permitted the witness to answer the question, which answer was as follows:

'Well, I can only say, as I said before, that it may have been due to the injury.'

This evidence was clearly inadmissible, for the reason...