Waterman v. Chicago & Alton Railroad

The following opinion was filed May 3, 1892:

PiNNEY, J.

1. The assignment of error, that the verdict is contrary to the evidence,' cannot be maintained. Upon the questions of fact involved in the issue the testimony is so clear on some of the points in favor of the plaintiff, and so conflicting on others, that this court cannot interfere with the verdict. There is sufficient evidence to sustain it.

2. It is not material to inquire whether there is sufficient evidence to sustain the verdict, independent of the depositions of Martin Murphy and Thomas Mann, had they been rejected, for we are of tbe opinion that these depositions were properly admitted. When the notice was given to take them, April 25, 1890, the action was pending in the circuit court for Rock county, and the notice was entitled in the cause as pending in that court. The taking of the depositions was in fact commenced on that day, but they were not concluded until the 29th of the same month. In the mean time, and on the 28th, an order had been made changing the place of trial of the action to the circuit court for Walworth county, and the record and papers in the action were accordingly certified and transmitted to the clerk of the last-named court, and filed in his office, May 1st. On the 6th of May the depositions, having been properly certified by the notary before whom they were taken, were sealed up and delivered by his clerk to the clerk of the circuit court for Rock county, who opened the package, and it so remained until he forwarded the depositions, on the Yth of May, to the clerk of the circuit court for Walworth county, who received and filed them May 9th. The objection is that the depositions were not delivered or transmitted by the officer before whom they were taken to the clerk of the court before which the action was pending; that, instead of leaving the officer who took them to return them to the clerk of the court in which the cause was entitled in the notice for taking them, as he naturally would, the plaintiffs attorney should have notified him of the change of place of trial and the transmission of the record, and procured him to send them to the clerk of the circuit court for Walworth county. The clerk of the circuit court for Rock county, upon discovering the contents of the package, closed it up, and transmitted it to the clerk of the same court, to whom he had already transmitted the record and papers.

All the statutory requirements for taking and returning depositions must be substantially complied with. The statute (sec. 40 87, R. S.) requires a deposition, when taken, to be “ delivered or transmitted by the officer by whom the same is taken to the clerk of the court ; . . before whom the action ... is depending, securely sealed.” It surely cannot be maintained that the officer taking these depositions might not send them over by his clerk to the office of the clerk of the circuit court in the same city. This would be strictly a transmission of them to that clerk, and there is no reason for saying that when they had been so transmitted, duly sealed, he could not lawfully forward them by safe means to the clerk of the court in which the action was then actually pending, so that they could be filed and used on the trial. There is no pretense of any improper practice, or that the depositions had been tampered with. We think that, under these circumstances, they were properly transmitted to the clerk of the circuit court for Walworth county. Substantially the same objection was made to the use of depositions under similar circumstances, and it was held untenable, in Gee v. Bolton, 17 Wis. 605, 608, 615.

3. One of the defendant’s expert witnesses, Dr. Palmer, who had been called to visit the plaintiff in consultation three several times with his medical attendant, Dr. Borden, and who testified as a witness in his behalf on the trial in the United States court, and was examined to some extent by the defendant on that trial, now testified, in answer to the hypothetical question put by the defendant’s counsel, that in the plaintiff’s case there first existed lumbago or congestion of the lumbar and spinal muscles; that inflammation of the spinal cord and its membranes followed, and subsequent to this an extension of -that inflammatory action to portions of the brain and its membranes; that, as an opinion founded on the state of facts as presented in the hypothetical question, he should say that the plaintiff’s condition was the result of exposure and cold, and not the re-suit of direct injury; that, upon such facts and the history of the case as given him by the' plaintiff and Dr. Borden, his medical attendant, and his personal examinations of the plaintiff, he did not vary his judgment. The collision occurred December 29, 1882, and Dr. Palmer visited the plaintiff with Dr. Borden, making a personal examination, February 9, 1883. Again he visited him, April 12th and. also December 19th in the same year, and the next time he saw him was in December, 1885, a few .weeks before the trial in the United States court, when he examined the plaintiff again,- with several other physicians and surgeons. On cross-examination he testified, in answer to questions regularly objected to by the defendant: “ I don’t think I have changed my opinion as to the character of his disease; ” that “ locomotor ataxia is a different disease from lumbago; ” that he had “ no knowledge of testifying' at Madison that the plaintiff had locomotor ataxia; ” and if he so testified, it was not in accordance with his views of the case at that time, nor ever has been. “ I think I did not so testify. I don’t think that he has locomotor ataxia now. I think I was asked what, in my judgment, was the matter with the plaintiff, and that I answered, ‘ I think he has a diseased condition of the spinal .cord and meninges (its membranes), one or both.’ I don’t think I said, ‘ I think his disease or condition at the present time would be accounted for more perfectly by the name of “ locomotor ataxia ” than any other name.’ I do not think that he had that disease, and therefore think I could not have made this answer. I wish to qualify myself in this: that is, he had conditions there present similar to what you get in locomotor ataxia. Those diseased conditions mingle with each other. You cannot well define and separate one from another. I never testified to his having locomotor ataxia.” In like manner he was asked whether he had, upon that trial, made certain answers to specific questions in regard to locomotor ataxia; as to its causes; whether it proceeded more usually from injury or from disease; and whether emotional disturbances, such as sudden fright, might cause it, a fall, the shock of a gunshot wound, and concussion of the spinal cord; as to the various symptoms and stages of the disease, and the period of their development.

These questions were objected to as not proper cross-examination in order to contradict the witness, and as immaterial; that the inquiries related to collateral matters, and not to any matter in issue, but the court ruled that they should be answered; and the -witness, in every instance, denied that the alleged questions and answers had been given, or denied any remembrance of the fact. On rebuttal, the plaintiff called a stenographer, present at the trial in the United States court, who testified from his minutes — against objection to each question by defendant’s counsel, that the inquiry was immaterial and irrelevant, and that no proper foundation for it had been laid — that Dr. Palmer, on that trial, testified that he thought the plaintiff had. a diseased condition of the spinal cord and meninges, one or both; that it is known by a particular scientific name; that he thought his disease or condition at that time would be accounted for more perfectly by the name of “ locomotor ataxico ” than any other name; that locomotor ataxia, of whatever type, did not as usually proceed from injury as from other causes; that he was asked, “ Doesn’t it proceed from injury just as much as from other causes?” and he answered, “No, sir; not so much as from other causes. I think it is a very unusual thing.” That the witness testified that an emotional disturbance, such as sudden fright, might be a cause of loco-motor ataxia/ that various traumatic injuries (by external force) might be the starting point of locomotor ataxia; and that instances are recorded in which the disease soon followed a fracture of the thigh, a fall upon the belly, the shock of a gunshot wound, and concussion of the spinal cord, but that very few authors are inclined to that opinion, and he did not’ know of any author that applied it to a direct injury. Dr. Palmer, on being recalled, testified that at that trial he was placed on the witness stand out of his order, to enable him to go to Chicago to attend to his duties there, as a lecturer at the college, and returned to be further examined by the plaintiff, as he understood he bad not completed his testimony, and plaintiff’s counsel told him he desired to examine him further; that he did not suppose that he was called there by the defendant at any time; that his recollection had been refreshed since his cross-examination in relation to the testimony he gave on that trial; that he now recollected that he gave evidence upon the question of locomotor ataxia; that he did not recollect it when cross-examined. “ I don’t know that I gave, at any time during that trial, any testimony in relation to locomotor ataxia, as applied strictly or directly to Mr. Waterman's case, except in the one particular question and answer above mentioned. I do not recollect of it anyhow.”

The general rule is that, with respect to all questions put to a witness on cross-examination for the purpose of directly testing his credit, if the questions relate to relevant facts, the answers may be contradicted by independent evidence; if irrelevant, they cannot. Taylor, Ev. §§ 1435, 1488; 1 Greenl. Ev. § 464; 1 Whart. Ev. § 551. It is not necessary that the prior statement of the witness, in order to affect his credit, shall be expressly and strictly contradictory to the testimony as given. It is enough that lie has made statements inconsistent with his testimony on the trial. Whart. Ev. § 551, and cases cited. In Taylor, Ev. § 1445, it is laid down that “it is certainly relevant to put to a witness any question which, if answered in the affirmative, would qualify or contradict some previous part of his testimony given on tbe trial of tbe issue; and if sucb question be put and be answered in.tbe negative, the opposite party may then contradict tbe witness; and for this simple reason: that tbe contradiction would qualify or contradict the previous part of tbe witness’ testimony, and so neutralize its effect (Attorney General v. Hitchock, 1 Exch. 102); and be may be cross-examined as to a former statement made by him relative to the subject matter of the cause, and inconsistent with bis present testimony. If tbe case be sucb as to render evidence of opinion admissible and material, he may be asked on cross-examination whether be has not on some particular occasion expressed a different opinion on tbe same subject, and if be denies the fact it may be proved by other evidence.” Taylor, Ev. § 1445; Lawson, Exp. Ev. 177. This was so held in Sanderson v. Nashua, 44 N. H. 492-494; Patchin v. Astor Mut. Ins. Co. 13 N. Y. 272; Miller v. Mut. Ben. L. Ins. Co. 31 Iowa, 236.

Dr.-Palmer, on tbe pending trial, had given his opinion as to tbe ailment of the plaintiff; that there first existed lumbago or congestion of the lumbar and spinal muscles, subsequently followed by inflammation of the spinal cord and its membranes, and subsequent to this an.extension of that inflammatory action to portions of tbe brain and its meninges; that it was tbe result of exposure and cold and not of direct injury; and this was based, not only upon tbe facts stated in tbe hypothetical question, but upon tbe history of the case as given him by the plaintiff and by Dr. Borden when be was called in consultation, and from bis personal examination of tbe plaintiff,— all of which occurred before the trial in the United States court. It was competent for the plaintiff,.on his cross-examination, to lay the foundation for showing that in his testimony on the former trial he gave an entirely different and inconsistent opinion as to the plaintiff’s condition and its cause, and one inconsistent with the theory that it was the result of ex.-posure and cold and not the result of direct injury. This testimony was competent, as a test of the sincerity, candor, and value of Ur. Palmer’s opinion given in evidence on the present trial, to show that the plaintiff’s disease was attributable to exposure and cold, and not to direct injury as claimed by the plaintiff, and to test its reliability and the proper weight to be given to his opinion in determining this issue. On the former trial, he had testified as the plaintiff’s expert witness, familiar, not only with the learning of his profession' oh the subject, but as having had a practical acquaintance with the case from his employment in it in consultation with Dr. Borden, the plaintiff’s medical attendant, and he was examined to some extent on behalf of the defendant. On the last trial he appeared and testified only as the medical and surgical expert of the defendant. All the facts and circumstances' elicited on his cross-examination and on the examination of the stenographer were competent to show contradictions or inconsistencies between his opinions upon the point in question expressed by him at the first trial and those given on the last one. The testimony of the stenographer could not be injurious to the defendant, unless such contradictions or inconsistency appeared. Dr. Palmer’s opinions upon the plaintiff’s condition and its cause had become a material and essential part of the defendant’s case, and whatever might be drawn out by the examination objected to, as affecting their value and weight, was in no just sense collateral, but pertained and related directly to the case itself.

A Upon the cross-examination of Dr. Maxon, one of the medical and surgical witnesses for the defendant, he testified in relation to cases of inflammation of the spinal cord which had occurred in his practice, and the plaintiff framed and put various questions embracing cases stated in Erickson’s work on Nervous and Spinal Diseases, and he was asked his opinion in respect to them. One of these questions was objected to as incompetent and immaterial, and be was allowed to answer it, but a subsequent question was objected to for the further reason that the reading of cases from medical books to a witness, expert or otherwise, was improper, and then the plaintiff’s counsel desisted. Another medical witness for the defendant, on cross-examination, was asked what cases he had treated of inflammation of the spine, and in stating one case in detail he was proceeding to and did state others, and was allowed to do so against the defendant’s objection. After the close of the testimony the plaintiff’s counsel applied to the court to withdraw the testimony of these witnesses so objected to from the consideration of the jury, and to instruct them to disregard it, and the court granted the request, and instructed the jury accordingly.

It is settled in this state and in most of the others, that medical books cannot be introduced in evidence, nor can an expert be permitted to testify as to statements contained in them (Boyle v. State, 57 Wis. 472; Kreuziger v. C. & N. W. R. Co. 73 Wis. 158); but they may be referred to on the cross-examination of a medical expert, where he has testified that books, recognized as standard authorities in the profession, lay down certain propositions or sustain certain conclusions, for the purpose of discrediting him (Ripon v. Bittel, 30 Wis. 614; Comm. v. Sturtivant, 117 Mass. 122; Pinney v. Cahill, 48 Mich. 584). When the books themselves are not admissible, an attempt to evade the rule of exclusion by conducting the cross-examination in such a way as to get the contents or statements in the books before the jury, is not admissible. Rog. Exp. Ev. § 178; Marshall v. Brown, 50 Mich. 148; People v. Millard, 53 Mich. 63, 77; Bloomington v. Shrock, 110 Ill. 219; State v. Winter, 72 Iowa, 627. We think the course pursued on the cross-examination of Dr. Maxon was erroneous, but that the error in relation to it, and the admission of other testimony so objected to, was cured by tbe subsequent withdrawal of it and the positive direction of the court to the jury to disregard it. Thomp. Trials, §§ 351, 2355; Johannesson v. Borschenius, 35 Wis. 132; Delie v. C. & N. W. R. Co. 51 Wis. 405, 406; Giese v. Sclultz, 69 Wis. 521-524; Beggs v. C., W. & M. R. Co. 75 Wis. 448; Hawes v. Gustin, 2 Allen, 402; Goodnow v. Hill, 125 Mass. 589; Hopt v. Utah, 120 U. S. 437. In view of all the evidence properly admitted,— and it is certified that it is all contained in the bill of exceptions, — we cannot say that the defendant was prejudiced by the course pursued.

5. The questions asked the defendant’s witness Martin Williams, on cross-examination, were within the limits of the rule. He was a fireman on defendant’s train at the time of the collision, and had been looking out on his side of the cab for signals, and he testified that he received a signal from a man near the switch target to come back, and he described it. He communicated it .to the engineer, who started his train back with the view of going south on the westerly track, and, instead, ran back over the cross-over track, colliding with the St. Paul train on which the plaintiff was riding, because the switch had not been turned to enable the train to go south, the signal given having been a false or improper one. He testified that he had had no experience as a firemau, except for nine days, and as to the meaning of the signal he received. It was competent to-ask him, on cross-examination, whether he understood signals well enough to know what the signal was for brakes, and, on his affirmative answer, to ask him if he had not testified differently on a former trial, and also show that, while he knew the signals at the present time, he was not positive of them then.

6. There was no error in permitting Dr. Philip Fox, Dr. B. O. Reynolds, and Dr. William Fox to testify in rebuttal as to the reasons why they did not think the plaintiff’s condition was caused by exposure and cold. When exam-inecl by the plaintiff in making out his case, neither Dr. Philip Eox nor Dr. Eeynolds testified on that subject, while Dr. William Eox had testified that, considering injury by cold as an exciting cause of plaintiff’s condition, he would not consider it to be likely that there would be local inflammation, so that a particular point, the size of a finger, would be a focal point of sharp pain.’ In view of the medical testimony given on the part of the defendant, it was proper, in rebuttal, to examine him generally on the subject whether cold and exposure were, in his opinion, the causes of the plaintiff’s condition, and Dr. Philip Eox and Dr. 33. O. Eeynolds as well. .

7. The court was asked to instruct the jury, in substance, that if they found from the evidence any cause or causes sufficient to stand as the cause of the plaintiff’s misfortune, other than the collision, then they should find for the defendant ; and also that the damages of the plaintiff, if .entitled to recover any, must be the natural and proximate consequence of the acts of the defendant complained of; and that if a new force or power intervened, or the exposure to which the plaintiff voluntarily subjected himself by riding during the previous night in an open car, were, either or all of them, sufficient to stand as the cause of the plaintiff’s physical condition, then the collision of the trains must be considered as too remote, and they should find for the defendant. These instructions wholly ignore the real cause of the injury, and under them the jury would be obliged to find for the defendant, even though the evidence should convince them that the actual cause of the plaintiff’s condition was the collision due to the defendant’s negligence. It is plain that what was the real cause was a question, under the evidence, for the jury, and a finding for the defendant would not be necessarily proper, even though the supervening force or power referred to was sufficient, perhaps, to produce the result complained of. The court left the Case to the jury on this point, very properly, to say whether the preponderance of the evidence showed that the collision of the trains caused by the negligence of the defendant company was the direct and proximate cause of the plaintiff’s diseased condition; that if the plaintiff’s exposure during the preceding night, or any other, cause or power which intervened, or either or all of them, was as lilcely, under the testimony, to have produced the plaintiff’s diseased condition as the collision of the trains, then the case must be decided against the plaintiff. These instructions were correct, and as favorable to the defendant as it was entitled to ask.

8. The instruction of the court on the subject of contributory negligence was not objectionable, in view of the evidence. Contributory negligence was not imputed to the plaintiff, save in respect to his riding in the open car with his sheep to care for them, and the evidence tends to show that there was a fair and reasonable necessity for the plaintiff to ride in the stoek car. That he did so ride in it is not, as a matter of law, contributory negligence; nor does the case of Lawson v. C., St. P., M. & O. R. Co. 64 Wis. 447, maintain that it would be. The instructions of the court on this subject are not open to any just criticism. The jury were told that the burden of proof was on the defendant to show contributory negligence of the plaintiff by a preponderance of evidence, yet they were also told, in the same connection, that the plaintiff’s own evidence might be considered in determining this' question; and if contributory negligence appeared from it, or from it and other evidence, it would be sufficient to establish contributory negligence. The defendant has no ground of complaint in this respect.

9. The testimony tends strongly to show that the plaintiff will never entirely recover from his present condition, and as the jury was authorized to assess damages as a compensation, not only for wbat he had suffered in the past, but for what he would with reasonable certainty suffer in the future, it was not error to instruct the jury that they might judge of the probable length of the plaintiff’s life under the testimony, inasmuch as his physical and mental condition had been proved, and the life table adopted in the circuit court rules had been read to the jury.

10. The motion to set aside the verdict was based on the ground, among others, that the damages are excessive, as well as on account of the statements made by plaintiff’s counsel in addressing the court and jury, and excepted to by the defendant. The testimony shows that the plaintiff was engaged in the stock business, and at the time of the accident was superintending his father’s and uncle’s farms; that since the accident he had not been able to attend to looking after the farms or stock business; that if he had any business to do he had to get some one to do it for him; that some years the stock business would be good, and other years it would not be so good, and the farm business would vary but very little; that the plaintiff thought he would realize about $1,500 a year, together with the farm and stock business; that he did not own a farm at the time himself; that he had a farm rented and sublet it on shares; that the first year after the'accident his wife had to be up with him from five to seven times each night, the second year from three to -five times; for over five years every time he was raised off his bed he had to have his limbs lifted off, and then to be raised up, and then when he wanted to lie down his limbs would have to be raised up; that the failure of strength to support himself and let himself down gradually was in his back; that for about five years he never laid on his back, except three or four times; that “ after five years I had to be helped to my chair. Then I was unable to move my feet. If I wanted to use my crutches, they would get me up on to them, and then, one of them holding on to me, I could manage to walk a little along, but after sitting down I could not move my feet, unless they were taken and moved along.” That since February, 1890, bis condition bad improved. “ I have to get up now with the aid of my arms. I have to make my arms my back. During the last three years I have not had such hard, sharp pains as during the first five. The dull pain is continuous. The last year and a half I have been sleeping quite a little better, but previous to that I didn’t sleep well. Would wake up three to five times each night,— sometimes more. When I wake up now I have to have assistance to be turned over. I cannot use my left leg as well as my right. My speech has been affected since February, 1883. I have gradually improved ever since the trial at Madison, but have not felt so well since last June, having had the grip in the spring. Was forty-one years at the time of the accident.”

The remarks made by plaintiff’s counsel in argument were not called for or justified by anything in the case, and were violative of the defendant’s right to a fair trial, to be conducted according to well-recognized rules and usages. The violation of these rules and usages is an impropriety which may greatly affect the verdict, and, if counsel indulge in such methods of argument, it is the duty of the court to see that their client shall not derive any advantage from them, and that the rights of the party who may be thus prejudiced are fully protected. The remarks complained of in this instance relate more especially to.the subject of damages, and no doubt stimulated a sympathetic and willing jury to materially increase the amount of the verdict. The tendency pf juries at the present time to give large, and indeed unusual, verdicts in actions for personal injuries brought against corporations is almost proverbial, and is well understood by all having experience in the courts,— verdicts which would not be given as against a natural person. No stimulus or encouragement in this connection is needed, and no unfair or improper influence to produce such a result can be permitted. A. corporation must be judged by the same law as a natural person. The law is no respecter of persons, natural or artificial, and in its administration the rights of each are equally sacred. The jury were told by one of plaintiff’s counsel that “ if it should so be that the sum you fix as just and reasonable should be regarded by the court as excessive, it is our privilege to throw off as we see fit to; ” in other words, that the jury could make no mistake by rendering a large verdict, and the plaintiff would take his chances in holding it. The court ruled that this was improper. .And the able and experienced senior counsel, in addressing the jury on the question of damages, said: “Money may minister somewhat to his comfort, and shall he not have it from a company that is able to pay? ” And this passed without notice, save by the defendant’s exception. Such methods of argument cannot be justified, and ought not to be tolerated. Brown v. Swineford, 44 Wis. 290-295, and cases cited, is an emphatic rebuke and warning on this subject.

Were it not that the case has been twice tried, in both instances with the same result on the question of liability, and that the evidence is such as to justify the belief that the rights of the defendant on that question were not prejudiced by these irregularities, we would feel bound to reverse the judgment absolutely on this ground, and grant a new trial. We entertain no doubt that this improper appeal tended materially to increase the verdict. The verdict is an unusually large one, and one, we think, which would not have been given against a natural person, and the award of damages, all things considered, must be regarded as excessive. We are aware of the intrinsic difficulty of dealing with such a question upon any certain or satisfactory rule. It is entirely a pecuniary question as to what amount of compensation is to be allowed to stand as damages in a practical and reasonable administration of the. law. The fact that there is no definite rule for arriving at the amount of damages in such cases shows the importance of guarding the minds of the jury from all misleading and improper influences and appeals. Dillingham v. Scales, 78 Tex. 205. There is but little doubt that the tendency of juries to render excessive verdicts against corporations supposed to be rich, leads to abuse and ought to be restrained. No intelligent person would deliberately consent to encounter the loss of physical and mental health and the capacity of the rational use and enjoyment of his faculties during life, and the inconvenience, pain, and anguish which the plaintiff has already suffered and will experience in the future, for the value of the entire property and franchises of the defendant. But it is manifest that the rule of damages is not to be governed by such considerations, nor can they be entirely disregarded. We do not think the facts justify as large a verdict in this case as was allowed to stand in the case of Heddles v. C. & N. W. R. Co. 77 Wis. 228, and, had a recovery been had in the circuit court within an ordinary period after the action had been commenced, we are inclined to think we would be reluctant to let it stand for more than $15,000; but in October, 1884, the case, at the instance of the defendant, was, as it turned out, improperly removed into the United States circuit court, where, after a lengthy and probably expensive trial, resulting in a verdict in favor of the plaintiff for $22,500, the case was taken to the supreme court of the United States, and it was there decided, after a lapse of six years, that the United States court had no jurisdiction over the case. During all this time satisfaction for the plaintiff’s injuries was withheld, through the fault and at the instance of the defendant, by keeping the case so long in a court having no power to give any relief. We feel, therefore, at liberty to act upon equitable considerations somewhat in determining at wbat sum the verdict, which we hold to be excessive, shall stand at the election of the plaintiff, and in view of all the circumstances we conclude that the judgment of the circuit court be reversed, and that the cause will be remanded with directions that if, within thirty days after filing the remittitur in that court, the plaintiff shall remit $5,000 of the amount awarded by the verdict, judgment shall be entered thereon in his favor for $20,000, with costs. Failing so to remit, there must be a new trial.

By the Court. — Judgment is ordered accordingly.

WiNslow, J., took no part.

Both parties moved for a rehearing, and both motions were denied September 2T, 1892. The following opinion was filed:

PeR Cubiam. The question whether interest shall be allowed in the entry of judgment, if the plaintiff elects to remit $5,000 from the verdict, has been presented on appellant’s motion for rehearing, and, in order to prevent any misapprehension, we think it proper to say that, in that event, judgment will be entered as on a verdict for $20,000, and the plaintiff will be entitled to tax, as costs, interest on that sum from the date of the original verdict, pursuant to the statute. Sec. 2922, E. S.