Weber v. St. Paul City Railway Company

• Decision Date: 12 January 1897
• Docket Number: 10,334--(144)
• Citation: 69 N.W. 716,67 Minn. 155
• Parties: JOHN B. WEBER, Executor, v. ST. PAUL CITY RAILWAY COMPANY
• Court: Minnesota Supreme Court

69 N.W. 716

67 Minn. 155

JOHN B. WEBER, Executor, v. ST. PAUL CITY RAILWAY COMPANY

Nos. 10,334--(144)

Supreme Court of Minnesota

January 12, 1897

Appeal by plaintiff from an order of the district court for Ramsey county, Brill, J., granting a motion for a new trial. Affirmed.

Order affirmed.

John A Lovely, J. F. George, and C. D. & Thos. D. O' Brien, for appellant.

If there was error on the part of plaintiff's counsel on the McCord incident, defendant's counsel are in pari delicto. See Hayne, New Trial, § 108; Turner v McIlhaney, 8 Cal. 575; People v. Montgomery, 53 Cal. 577. If the verdict is undeniably correct a new trial will not be granted, notwithstanding the admission of improper testimony. State v. Engle, 1 Zabriskie, 347; Stephens v. Crawford, 1 Kelly, 574; McMulley v. Mayo, 8 S. & M. 298; Van Cort v. Van Cort, 4 Edw. Ch. 621; Carlock v. Spencer, 2 Eng. (Ark.) 12; Allen v. Parish, 3 Ohio 107; Smith v. Kerr, 1 Barb. 155; Bradford v Pearson, 12 Mo. 71. The erroneous admission of evidence which does not affect the result, or which refers to facts established by other testimony, is not ground for new trial. In re Yetter's Estate, 55 Minn. 452, 57 N.W 147; Jones v. Snow, 56 Minn. 214, 57 N.W. 478; Steiner's Exec. v. Eppinger, 23 U. S. App. 344, 9 C. C. A. 483, and 61 F. 253; Holmes v. Goldsmith, 147 U.S. 150, 13 S.Ct. 288.

A patient's description of his symptoms, sufferings and injuries, made to his attending physician for the purpose of receiving treatment, are competent. Brusch v. City R. Co., 52 Minn. 512, 55 N.W. 57; Johnson v. Northern Pac. R. Co., 47 Minn. 430, 50 N.W. 473; Cooper v. City R. Co., 54 Minn. 383, 56 N.W. 42. The repetition by the physician as a witness of symptoms stated to him by the patient is competent and not hearsay. Barber v. Merriam, 11 Allen, 324; Aveson v. Kinnaird, 6 East, 188; Rogers v. Crain, 30 Tex. 284; Quaife v. Chicago & N.W. R. Co., 48 Wis. 513, 4 N.W. 658; Hagenlocher v. Coney Isl. & B. R. Co., 99 N.Y. 137, 1 N.E. 536; Chicago, St. L. & P. R. Co. v. Spilker, 134 Ind. 380, 33 N.E. 280; Atchison & C. R. v. Frazier, 27 Kan. 463; Louisville, N. A. & C. R. Co. v. Falvey, 23 Amer. & Eng. R. Cas. 522, 3 N.E. 389; Merkle v. Bennington Tp., 58 Mich. 157, 24 N.W. 776; Mulliken v. City of Corunna (Mich.) 68 N.W. 141.

Munn, Boyesen & Thygeson, for respondent.

The testimony of Dr. McCord as to Weber's statement of how he was injured was clearly incompetent. The declarations of the party to his physician must relate to the present and not to the past. Rogers, Exp. Test. § 47; Fort Worth & D. C. R. Co. v. Stone (Tex. Civ. App.) 25 S.W. 808; Chapin v. Inhabitants, 9 Gray, 244; Roosa v. Boston L. Co., 132 Mass. 439; Emerson v. Lowell G. L. Co., 6 Allen, 146; Bacon v. Inhabitants, 7 Cush. 581; Illinois C. R. Co. v. Sutton, 42 Ill. 438; Dundas v. City of Lansing, 75 Mich. 499, 42 N.W. 1011; Merkle v. Bennington Tp., supra; Atchison, T. & S. F. R. Co. v. Frazier, 27 Kan. 463; Texas & N. O. R. Co. v. Crowder, 70 Tex. 222, 7 S.W. 709; Fordyce v. McCants, 51 Ark. 509, 11 S.W. 694; Taylor v. Grand Trunk R. Co., 48 N.H. 304; Fitzgerald v. Town of Weston, 52 Wis. 354, 9 N.W. 13; Boston & A. R. Co. v. O'Reilly, 158 U.S. 334, 336, 15 S.Ct. 830; Firkins v. Chicago G. W. R. Co., 61 Minn. 31, 63 N.W. 172; Eastman v. Boston & M. R. Co., 165 Mass. 342, 43 N.E. 115.

Appellant's counsel practically concede our contention, but they maintain it did not constitute prejudicial error. If error is committed by the trial court the presumption is that it was prejudicial, and the party against whom such error is committed is entitled to a new trial, unless it conclusively appears that he was not prejudiced thereby. Brown v. Cranberry I. & C. Co., 18 C. C. A. 444, 72 F. 96; Deery v. Cray, 5 Wall. 795; Boston & A. R. Co. v. O'Reilly, supra; Vicksburg & M. R. Co. v. O'Brien, 119 U.S. 99, 7 S.Ct. 118; Fort Worth & D. C. R. Co. v. Stone, supra.

OPINION

BUCK, J.

The plaintiff's testator, John E. Weber, was a passenger upon a street car of the defendant company operated upon West Seventh street in the city of St. Paul, and while he was such passenger, on November 1, 1893, a collision took place on that line between two of the street cars of the defendant company; and it is claimed that in such collision, and by reason thereof, he received severe personal injuries, and this action was brought to recover damages for the same. The action was commenced by Weber and tried in the month of February, 1895, and the jury returned a verdict in his favor for the sum of $ 9,250. Weber, for some cause, was physically unable to be present at the trial, and by reason of his mental and physical condition his deposition could not be taken and used on the trial. Motion for a new trial was made by the defendant, but, before its hearing, Weber died, and John B. Weber was substituted as plaintiff herein. Subsequently, the court below granted a new trial, and plaintiff appeals.

The only question which we deem it necessary to consider arises upon the admission of certain evidence against the objections of the defendant. The plaintiff called as a witness in his behalf Dr. McCord, who testified that he saw him (John E. Weber) on November 4 or 5, 1893, and talked with him about his condition and injuries; and from the record we quote so much as embraces the objectionable testimony given by Dr. McCord:

"Q. What took place between you and the plaintiff at that time touching his treatment? A. Well, he called me in the front room, and told me that he would like to try and find out what was the trouble with him. He complained of a great deal of pain in the back -- Q. What part of the back? A. In the small of the back, -- a great deal of pain in the back; and he complained of a very severe headache, and he said he felt nervous and weak. Q. What did he say as to any injuries he had received? A. I asked him about his accident at that time. He said he was sitting in the car, towards the back end of it, and that -- Mr. Munn: In order to preserve our record, we object to this as incompetent, immaterial, inadmissible, and hearsay testimony. The Court: Well, are his declarations as to how he was injured admissible? Mr. O'Brien: I think it is competent when made to a physician -- his statement of how he was injured -- with reference to the treatment. It is one of the subjective symptoms. It is always competent. (Overruled. Exception by defendant.) Q. Go on, Doctor. A. He told me that he was sitting in the back part of the car, and didn't see this other car that came in collision with this one until it was almost onto them, and that he arose, and grabbed hold of a window, or the side of a window, and just at that time the car struck and wrenched him around, and threw him partly on the floor and partly on the opposite seat of the car. Q. Did he state what part of his body had come in contact with any part of the car? (Same objection, ruling, and exception.) A. No; I don't know that he did."

In view of the complications which may arise upon a new trial by reason of the death of plaintiff's testator, we have made a careful investigation of the facts and the law, and, in our opinion, the order granting a new trial must be sustained. That Weber was a passenger upon defendant's car at the time of the collision is conclusively established; that the collision was one of great violence is equally well established; and that soon after...