Wright v. Conway

• Decision Date: 08 December 1925
• Docket Number: 1170
• Parties: WRIGHT v. CONWAY. [*]
• Court: Wyoming Supreme Court

242 P. 1107

34 Wyo. 1

WRIGHT v. CONWAY. ^[*]

No. 1170

Supreme Court of Wyoming

December 8, 1925

Error to District Court, Laramie County; William A. Riner, Judge.

34 Wyo. 1 at 42.

Original Opinion of December 8, 1925, Reported at: 34 Wyo. 1.

Rehearing Denied.

POTTER Chief Justice. BLUME and KIMBALL, JJ., concur.

OPINION

ON PETITION FOR REHEARING.

POTTER, Chief Justice.

A petition for rehearing has been filed in this case. Among other things it is asserted and argued that a certain portion of the evidence was overlooked in the opinion, as well as some citation of authorities by the plaintiff in error. Nothing of that kind was overlooked in the court's consideration of the case. The item of evidence referred to was not recited or specifically referred to in the opinion for the reason that it was not believed by the court to have any effect in the determination of the case, and its inclusion in the recitation of the facts would merely have added unnecessarily to the length of the opinion. Indeed, as originally prepared the opinion contained a statement thereof which was thereafter omitted for the reason stated. We will take up that matter later.

It is, perhaps, true that all of the cases cited in the brief of plaintiff in error were not mentioned in the opinion, but we shall not take the time to make a comparison between that brief and the opinion to ascertain whether that is indeed the fact or not. Very many cases were examined by the court, whether cited by counsel or not, and several were not specifically mentioned in the opinion. The fact is, however, that the case received the most thorough consideration by the court. One authority which it is now said by counsel was cited in the brief and not in the opinion is Howatt v. Cartwright, 128 Wash. 343, 222 P. 496. But that case was cited in the opinion, though not upon the proposition for which it was cited in the brief. And it was thoroughly read and considered by the court.

Objection is taken to our stated conclusion that it was the duty of the plaintiff below, plaintiff in error here, to have shown the availability of an X-ray apparatus or machine in order to succeed in its charge that the defendant was negligent in failing to use it for the purpose of discovering whether or not the fragments of the bone were in apposition, or otherwise as an aid to diagnosis and treatment. And the case just mentioned, Howatt v. Cartwright, 128 Wash. 343, 222 P. 496, is supposed to have been overlooked by the court upon the question of negligence in the failure to use X-ray. It appeared in that case that such a machine was available, and had indeed been used at the beginning of the examination and treatment. And the charge of negligence was that the defendant had failed to use it sufficiently often. It was not therefore deemed to support the theory of plaintiff in this case upon the facts.

It is now argued that the point of the necessity of proof by plaintiff of the availability of an X-ray apparatus or machine was not discussed in the brief or argument of either party, and that plaintiff should, on that ground alone, be granted a rehearing in order that it may be fully presented to the court. Such an argument would no doubt at times be persuasive, but in this case we see no ground for its application. A most thorough investigation of the authorities speaking upon the question of the use of the X-ray was made and we cannot apprehend that further argument would avail to convince the court that the matter of negligence in failing to use the X-ray should have been submitted to the jury, notwithstanding the failure to prove that it was available to the defendant under the circumstances. Beyond that, however, the proof in support of the charge of negligence was found to have been insufficient upon another ground, viz: that its use would not have demonstrated the truth of the contention of the plaintiff that the fragments of the broken femur bone were not in apposition, since the evidence shown by an X-ray picture made only a day before the discharge of the defendant from the case, as explained by the defendant to the wife of the plaintiff, as she testified, showed the bones to have been then at least in partial apposition.

The point is now made also that since an X-ray was found to be available and used four weeks after the diagnosis and commencement of the treatment, it would be a fair inference that the same instrument was available at all times before that, including the time of the diagnosis and beginning of the treatment. But we think that the case should not be disposed of upon any such ground, especially in view of the fact that if such a machine was available the plaintiff was in a situation at the time of the trial to have shown the fact, and, indeed, it appears that the matter was in the mind of counsel when Dr. Mylar, the expert witness called by him, was upon the stand, for, as stated in the former opinion, the question as to the availability of an X-ray machine was asked of that witness upon redirect examination, though he was not allowed to answer because of an objection that the question was not proper upon redirect examination, notwithstanding which fact the witness was not recalled for further examination. But in view of the nature of the subject we are clearly of the opinion that the suggested inference of availability during the preceding four weeks would not be the law.

While it is stated and recognized as a familiar general rule (22 C. J. 86) that proof of the existence at a particular time of a fact of a continuous nature gives rise to an inference or presumption, within logical limits, that it existed at a subsequent time, a rule that proof of the existence of a present condition raises an inference or presumption that it existed at a prior time is not so generally accepted. Yet there are cases in which the prior existence of such a condition may be inferred or presumed, depending upon the subject (id. 92). We find a fair statement of the principle, as to both prior and subsequent existence, in Washington &c. Ry. Co. v. Vaughan, 111 Va. 785, 69 S.E. 1035. The case there reported was an action for damages for personal injuries suffered by a passenger on defendant's line of electric railway, and one of the apparently disputed facts was whether the electric and oil headlights of the car were burning at the time of the accident. And the question arose whether it was admissible to show, by witnesses who saw the car about fifteen minutes after the accident, that such headlights were then burning. The court said:

"Where the existence of a thing at a given time is not shown, its prior and subsequent existence is, according to human experience, some indication of its probable existence at a later or earlier period. The degree of probability that a thing was in existence at a given time, from its existence at a subsequent period, will depend upon the likelihood of some intervening circumstance having occurred and been the true origin. 1 Wigmore on Ev., Sec. 437."

And with reference to the point in that case the court said that whether the length of time which had elapsed and the distance traveled was too great, was for the trial court, in the exercise of a reasonable discretion, and the appellate court could not say that it had not properly exercised its discretion in rejecting the offered evidence. In the section cited from Wigmore on Evidence, that author says:

"When the existence of an object, condition, quality, or tendency at a given time is unshown, the prior existence of it is in human experience some indication of its probable presence or continuance at a later period. The degree of probability of its continuance depends upon the chances of intervening circumstances having occurred to bring the existence to an end. The possibility of such circumstances will depend almost entirely on the nature of the specific thing whose existence is not shown and the particular circumstances affecting it in the case in hand. That a soap-bubble was in existence half-an-hour ago affords no inference at all that it is in existence now; that Mt Everett was in existence ten years ago is strong evidence that it exists yet; whether the fact of a tree's existence a year ago will indicate its continued existence today will vary according to the nature of the tree and the conditions of life in the region. So far, then, as the interval of time is concerned, no fixed rule can be laid down; the nature of the thing and the circumstances of the particular case must control. Similar considerations affect the use of subsequent existence as evidence of the existence at the time in issue. Here the disturbing contingency is that some circumstance operating in the interval may have been...