Beattie v. J. L. Hudson Co.

Brooke, J.

(after stating the facts). Of the 70 assignments of error, the first 34 deal with the admission or exclusion of testimony. We believe they are without merit as constituting reversible error with one exception. Dr. Sanderson, an expert witness for plaintiff, in answer to a hypothetical question, gave evidence to the effect that in his opinion plaintiff’s present condition was the result of the injury received by her in the accident. Upon cross-examination it developed that the opinion of the witness was based in part upon the facts stated in the hypothetical question, in part upon a physical examination, in part upon the history of the case as related to him by plaintiff, and in part upon what Dr. Oppermann, plaintiff’s attending physician, had told him in a consultation. A motion was thereupon made to strike out Dr. Sander-son’s testimony, which was denied. We think it obvious that an opinion based upon facts or information beyond the personal knowledge of the witness, and not in evidence, should not have been permitted to stand. Connell v. McNett, 109 Mich. 329 (67 N. W. 344) ; La Londe v. Traction Co., 145 Mich. 77 (108 N. W. 365). It may be that the opinion of the witness, based solely upon his personal knowledge or observation and the facts in evidence, would have been the same, but of this we cannot be sure. It would seem clear that his evidence upon this point (strongly contested on the part of the defendant) was largely influential upon and may have controlled the verdict of the jury, which clearly indicates a belief in the theory which received his support.

By its second, eighth, and thirty-first requests to charge, defendant asked the court to instruct the jury as to the burden of proof. The eighth is in part as follows:

“The burden is upon her to satisfy you, by a fair preponderance of evidence, that she was not guilty of contributory negligence, and on this particular time and occasion she was exercising reasonable care and watchfulness to avoid and avert, if possible, a collision or accident.”

Upon this point the court charged:.

“Now it is incumbent upon the plaintiff in this case, as in cases generally, to make out her case by a preponderance of the evidence; to make out her case by the truths that will convince you; to make out her case, to repeat, by a preponderance of evidence. That is to say, she must prove, gentlemen, to your satisfaction, each and every requisite to a recovery by her, and in this connection I wish to say to you that proof of an injury alone will not support her case. There must appear to be by the proofs adduced a concurrence of injury and wrong. That is, it must appear, not only that the plaintiff suffered injury from the acts of the defendant, but that the acts complained of, which resulted in the injury, were done in a manner and at a time, or under circumstances, which render it wrongful or lacking in due regard for the rights of others. Then, in order to recover in this case, plaintiff must make out a case, not only of injury, but of wrong upon the part of the defendant, or the servant acting in the line of his duty. And so it is that the burden of proving by a preponderance of proof rests upon the plaintiff, both of the wrongful act of the defendant, the injury which resulted therefrom to the plaintiff, and the damages she suffered because of that injury. This is all upon the plaintiff to prove. These .essentials must be shown by a preponderance of proof.”

In another portion of the charge the jury is instructed that the plaintiff—

“In avoiding the danger, must exercise the same care; that is, the care and diligence that an ordinary person under just such circumstances would exercise in avoiding a collision with a wagon driven as this was driven across the street.”

This was a correct statement of the law as bearing upon plaintiff’s duty, but we have been unable to discover, anywhere in the charge, an instruction that the burden of proof rested upon plaintiff to show, by a fair preponderance of the evidence, that she had performed that duty. The case was a very close and hotly contested one upon the question of plaintiff’s contributory negligence. We are of opinion that it was reversible error for the court to refuse to at least give the substance of that portion of the eighth request above quoted.

Again the court charged:

“And, should you find that the claim of the witness Mrs. Davis is true, that she and the plaintiff were on the crossing, paying no attention to the passage of vehicles on the street, and while thus inattentive to the situation the plaintiff carelessly walked in front of the horse of the defendant, being at the time reasonably and with care driven across the street, if you find such facts as this to exist in the case, as proven by a preponderance of the proof, in such case the plaintiff would be guilty of contributory negligence and would not recover in this case. It would be in violation of the rule that I have already laid down that it is incumbent upon her to exercise reasonable care and caution in avoiding any accident or danger from passing vehicles.”

This instruction would seem to place upon defendant the burden of showing plaintiff’s contributory negligence, which is just the converse of the true rule.

Many other errors are assigned upon the refusal to charge as requested and to the charge as given. We are of opinion that they require no discussion.

For the errors pointed out, the judgment is reversed, and a new trial ordered.

McAlvay, C. J., and Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.