Ferebee v. Norfolk Southern Railroad

WALKER, J., concurs in result. This case was before us, 163 N.C. 351, when we directed a partial new trial, restricted to the single issue of damages. The first and second exceptions, because the trial judge submitted no other issue, need not be considered.

The third and fourth exceptions are that Dr. Richardson, who had qualified as an expert, was permitted to testify, while the plaintiff was being examined and exhibited to the jury: "This place up here, (indicating) on the neck is the most serious injury of the two, and apparently has been produced by some force coming from a point above this place of injury, carrying the head and upper part of the spine forward. I state that for the reason that the neck here. . . ." The witness then proceeded to testify without objection: "My reason for stating that the conditions of this kind may be brought about for two causes: one of them is accidents or injuries in which force produces them, and the other is diseased conditions. Diseased conditions of the spine will frequently, and often do, produce deformities which resemble these in some particulars." (Page 23 of the record.)

It has always been held competent for experts to testify as to the character and extent, and to give their opinion as to the producing causes, of wounds, whether or not they were gunshot wounds or produced by sharp or blunt instruments, and to give their opinions generally as to the causes and effects of injuries. The doctor was not giving his opinion as to the manner in which the plaintiff received the injury or as to when or where it was received. Other witnesses testified as to those facts. The objection of the defendant that the doctor was an osteopath cannot be sustained. The court having found he was an expert, to what school of medical thought and practice the expert belonged is as irrelevant as to what church or political party he was affiliated with.

Exception 5, that the plaintiff testified as to his prospects of promotion, cannot be sustained. The witness said that when he was a brakeman he got from $40 to $48; when he was a flagman that he got $55 and $60, and when he was injured he was getting from $84 to $87 per month. In response to the question, "How long did you get as much as $80?" he replied: "I had been in line for the extra baggage two or three months." This meant, of course, that he had been extra baggage-master for that length of time. Besides, upon objection, the plaintiff withdrew the question, and to the inquiry, how long he had been drawing $80 per month, the witness replied, "Two or three months."

The sixth and seventh exceptions do not require discussion. The plaintiff was a baggage-master, but it has no bearing upon this injury to show that he was not in that car at the moment of the injury.

The eighth exception is based upon the ground that the court (294) did not permit the defendant to prove its printed rules by oral testimony of the plaintiff on cross-examination and is untenable.

The ninth exception is that the court permitted the plaintiff to ask the defendant's witness, Dr. Moore, "Do you want to leave the jury under the impression that the plaintiff is ``faking'?" The manner of the cross-examination is very largely a matter which must be left to the sound judgment and discretion of the learned and impartial trial judges, and this Court will not interfere except in case of palpable abuse or of injury done appellant, which does not appear to be the case in this instance. The witness was not treated with indignity, nor do we see that the defendant could be prejudiced by asking the witness if he intended to disparage the plaintiff.

Exception 10: Dr. Spillman, who had treated the plaintiff and testified as to the amputation of his arm, was permitted to state that, "in his opinion, the effect of the pain upon the general nervous system was that the patient gets nervous, can't sleep, and begins to go to pieces all over."

Exception 11: Dr. Graves was permitted to testify: "Upon examination, I found Mr. Ferebee rundown and weak, with a rather troubled expression, indicating both sorrow and suffering." These witnesses were medical practitioners, found to be experts by the court, and we cannot see that this evidence was in any way prejudicial to defendant.

Exception 12: Dr. R. L. Payne, who was admitted as an expert, testified that there were "improved methods in general use in the medical profession for the purpose of examining and demonstrating the sensations or lack of sensations in the patients," and he added that the method used by Dr. Glascock (also an expert witness) was not according to the improved method. The court refused to permit this witness to state whether or not a person could pass through such an examination as Dr. Glascock had exhibited and yet have sensation. We suppose that this exclusion was upon the ground that the witness had already testified fully and had virtually told the jury that the test made by Dr. Glascock had amounted to nothing, and a further pursuit of this subject was simply repetition calculated to give the jury no additional light upon the issue before them.

The statement of the witness, that he believed the defendant's witness, Sawyer, had feeling towards him, is the thirteenth exception. We cannot see that it was in any way prejudicial. At most, it was irrelevant.

The fourteenth exception was that the plaintiff testified that two nurses in the Norfolk hospital, who attended him after his injuries, were then in court under subpoena by the defendant. This was to show why (295) the plaintiff had not subpoenaed them, and that the defendant, having had an opportunity, did not put them on the stand.

The fifteenth and sixteenth exceptions, for refusal to instruct the jury, as prayed, "to consider the conduct of the plaintiff at the time of his injury," was properly refused, because on the former trial the jury had responded "No" to the third issue, "Did the plaintiff by his own negligence contribute to his injury, as alleged in the answer?" To permit that injury to be again considered in this trial, in reduction of damages, would be to try again that question, when the sole issue submitted in the new trial granted by the Court was as to "the damages sustained by the plaintiff by reason of the negligence of the defendant." The jury having already found on the former trial that there had been no contributory negligence, and this having been affirmed by this Court on appeal, the jury could not consider again the matter of contributory negligence in reduction of the damages. The former verdict had established that the plaintiff had been injured by the negligence of the defendant, and that he had not contributed to that injury, and the sole issue submitted to the jury under the direction of this Court was, therefore, as to the amount of the damages.

The court modified the prayer, "The ability of the defendant to pay damages is a matter which cannot properly be considered by you in answering the issue," by inserting the word "large" before the word "damages." We do not think that this, if error, was substantial enough to warrant a new trial, which is the sole object of taking an exception. That was the seventeenth exception. Neither can we sustain the eighteenth, which was to the refusal of the court to instruct the jury that "The medical experts who testified for the plaintiffs were naturally inclined to view the circumstances that make for the plaintiff's side in a favorable light and contrary circumstances in an unfavorable light." This would have been to express an opinion upon the weight of the evidence.

The nineteenth cannot avail, for the instructions asked were substantially given.

The defendant requested the court to charge that the plaintiff, "as a party to this action, has an interest in the outcome of such a character that it is your duty to scrutinize his evidence with care and to give due consideration to the fact that he is interested." The court gave this, but added the following: "That is the extent of your consideration, and I do this because the Supreme Court has held that it must be done. But after you have done so, and you shall conclude that he told the truth, you will give the same weight to the evidence that you would to that of any other credible witness."

We cannot, in view of the previous decisions of this Court, say (296) that it was error in his Honor to make such addition to the prayer. In Herndon v. R. R., 162 N.C. 317, the matter is fully discussed and many of the previous rulings of this Court cited in the opinion of the Court and in the dissenting opinion in that case.

In that case Judge Justice charged the jury, upon the weight to be given to the testimony of parties and witnesses, as follows:

"Weigh all this evidence, gentlemen, in every way; and in weighing it you have a right to take into consideration the interest that the parties have in the result of your verdict, the conduct of the witnesses upon the stand and their demeanor; the interest that they may have shown, or bias, upon the stand, if any; the means they have of knowing that to which they testify; their character and reputation, in weighing this testimony, so as to arrive at the truth of what this matter is."

In order to settle this matter for the future, we commend to the judges of the Superior Court this charge as a full and clear statement of duty of jurors in passing upon the evidence of parties when they are witnesses. We think that nothing more need be added to it. It is all that is necessary.

As to the twenty-first exception, the court properly told the jury, "At a former term of this court the issues as to negligence and contributory negligence were settled entirely. This issue was also settled at that trial; but this question we have up now has been sent back by the Supreme Court for a new trial, and that is the issue as to the quantity of the damages."

Exceptions 22 and 23 are to paragraphs of the charge which we do not find objectionable.

Exception 24 is because the court charged the jury, "While the first two issues settled the question of negligence and contributory negligence, and entitled the plaintiff to recover, when they come to introduce evidence as to the damages, they are not confined to the same damages, specific evidence of damages, as they were before." That is, that on a new trial as to damages the plaintiff is not restricted to the same evidence which he used on the former trial. This is correct. Nor was there any error in exception 25, because the court told the jury that "The plaintiff alleged and offered evidence that he is damaged in several respects besides his disability to labor," nor in exception 26, because the jury were instructed that they could not give any consideration to the issues of negligence and contributory negligence, because those two issues had been settled in the former trial.

Exception 27 is to a statement of a contention of the plaintiff, and no exception was made to it during the progress of the trial. If the statement that the plaintiff so contended was erroneous, the defendant (297) should have called it to the attention of the court for correction at the time (Jeffress v. R. R., 158 N.C. 215), for it was not as to a matter of law, but as to a statement of fact, which the judge should have been given opportunity to correct at the time.

Exception 28 presents exactly the same proposition, of an alleged error in stating a contention of the plaintiff.

Exception 29 is because the judge included in his charge as elements of damages "nursing" and "loss of mental powers." As to the nursing, the judge restricted the allowance for cash paid out for medical and nursing bills to $250, when the plaintiff testified that he had actually paid out between $250 and $275 for medical assistance and medicines. As to the "loss of mental powers," the judge was requested to withdraw that from the consideration of the jury as an element of damages, and the court told the jury, "That is withdrawn. You will not consider it in your deliberations."

The other exceptions were to the refusal to set aside the verdict; refusal to grant a new trial; refusal to set aside the verdict as being excessive; to the refusal of a judgment non obstante veredicto, and to the judgment as entered. All of these are merely formal, and are based upon the exceptions already discussed.

No error.