Vale v. Campbell

• Decision Date: 31 January 1928
• Citation: 263 P. 400,123 Or. 632
• Parties: VALE v. CAMPBELL.
• Court: Oregon Supreme Court

263 P. 400

123 Or. 632

VALE v. CAMPBELL.

Supreme Court of Oregon

January 31, 1928

In Bank.

Appeal from Circuit Court, Klamath County; A. L. Leavitt, Judge.

Action by Milton M. Vale against T. C. Campbell. Judgment for defendant, and plaintiff appeals.

Affirmed.

This is an action to recover the sum of $26,000 damages alleged to have been suffered by plaintiff as the result of alleged negligence in the treatment of a broken femur by defendant. The jury returned a verdict in favor of the defendant, and plaintiff appeals.

Plaintiff assigns seven errors: First, order of the court disallowing plaintiff's challenge to a juror; second to sixth inclusive, the court's ruling on admission of testimony and seventh, the court's refusal to give plaintiff's requested instruction, and giving, instead, a modified instruction.

W. P Myers, of Klamath Falls, for appellant.

H. M Manning, of Klamath Falls, for respondent.

COSHOW J.

It has been so often held by this court that the order of the court on the question of actual bias of a prospective juror is discretionary that such ruling should be considered the settled law of the state. A leading case announcing this principle is State v. Armstrong, 43 Or. 207, 73 P. 1022, quoted at length with approval in State v. Brumfield, 104 Or. 506, 525, et seq., 209 P. 120. The trial court did not abuse its discretion in overruling plaintiff's objection to the juror in the instant case.

Plaintiff complains of the court's ruling permitting defendant to cross-examine plaintiff's wife regarding calling defendant to the hospital. Probably the question objected to was not strictly cross-examination. The extent of cross-examination rests largely in the discretion of the circuit judge. Neither the question nor the answer was prejudicial to plaintiff's cause of action.

Plaintiff complains of the admission of testimony regarding X-rays taken of the injured femur, but not produced at the trial. Evidence was given to the satisfaction of the presiding judge that the X-rays could not be found. The witness was permitted to testify that the X-rays, in effect, supported his diagnosis of the injury. Inasmuch as there is no controversy in the pleading or the evidence as to the nature of the injury suffered by plaintiff, such testimony, if objectionable, was harmless. Proper showing was made that the X-ray photographs were lost, and it did seem that evidence of the disclosures made by them would be admissible, although the photographs were not produced. The testimony admitted was not prejudicial.

The trial court must be sustained in ruling the attempted cross-examination of defendant, regarding the contents of his answer, to be improper. The question propounded was argumentative, and did not call for any fact. Defendant's answer was before the court. If there was contradiction between it and defendant's testimony, such contradiction was a proper subject for argument before the jury. It was not proper examination to argue the question with the witness.

The court properly ruled regarding X-ray pictures taken by or under the direction of three physicians chosen for that purpose by the parties to the case. It was proper examination to have said physicians, while witnesses, testify to the results of that examination. The X-rays themselves were admissible as evidence, but only when supported by the testimony of the party taking them or an expert who knew them to show accurately the true condition of the object represented thereby. X-ray photographs are used as other maps, plats, or representations of physical objects are employed as evidence. They are valuable only when supported by the testimony of a person. They are used for illustrations. X-ray photographs differ from ordinary photographs, in this, that the ordinary person is not sufficiently familiar with them to be able at all times to discern what they represent. It is competent for one who is an expert in such matters to explain the X-rays under proper supervision, so that the court and jury may view the picture as the witness does. 1 Wigmore 893 et seq., §§ 790-795, inclusive...