Baus v. Trenton, C., Traction Corp.

The opinion of the court was delivered by Campbell, J. The respondents have judgments upon verdicts obtained in the Mercer County Court of Common Pleas against appellant; Meaney for damage to a motor truck for $255 and Bans for personal injuries for $15,000. The actions were based upon the alleged negligence of the servants of appellant in operating a trolley car in the city of Trenton resulting in a collision between such ear and the motor vehicle operated and occupied by respondents. Upon appeal to' the Supreme Court the judgments of the Common Pleas Court were affirmed, and from such judgment of affirmance the present appeals are taken. The one ground of appeal urged in the Meaney ease is that the trial court denied appellant’s motion for a nonsuit, whereas it should have granted the motion, because there was no evidence of negligence on the part of appellant, and the negligence or contributory negligence of the plaintiff-respondent clearly appeared. We are satisfied, as was the Supreme Court, that the trial court was clearly right in denying this motion. There was testimony from which negligence of appellant could be found, and the question of contributory neglience' in this case was one that also should have been submitted to the jury, as was done. There being no error, the judgment below is affirmed. In tire Baus case there are three grounds of appeal urged and argued hero. *366 The one is the refusal to nonsuit as urged in the Meaney case, and which has already been disposed of herein. That disposition was that there was no* error in refusing to nonsuit, and that is also our conclusion in the Baus case. The next ground of appeal is that Dr. Martin W. Reddan, a physician, called for the plaintiff Baus, was asked and permitted to answer over objection the following question with reference to the plaintiff Baus, after Baus, himself, had testified fully on the entire subject-matter of his suit: “Q. Assuming this man’s memory were good before the accident, and normal, would you say he was able to recount with a fair degree of accuracy the things which happened at this accident ?” The complaint directed to the admission of this question is that it was an attempt to impeach plaintiff’s own witness, but that is not so. See Fox v. Forty-four Cigar Co., 90 N. J. L. 483, defining impeachment. The plaintiff had testified as to- his faulty memory since the accident, and so had his wife, and this question simply solicited corroboration thereof. There was no error in permitting an answer to this question. The final ground is that the court should not have overruled the question put to Dr. Martin W. Reddan on cross-examination; namely — “Now, doctor, what marked and familiar symptom of paralysis agitans is there which does not exist in Mr. Baus’ case?” Dr. Reddan was the physician and surgeon who- had attended, treated and operated upon Baus from the time of the accident, and was still attending and treating him at thctime of trial, although he had never treated or known him prior to the accident. Baus and his wife and James Meaney had testified to the good health and physical condition of Baus prior to the accident. At the time of the trial Baus had a trembling of the head and right hand and an impairment of his memory. Dr. Reddan had testified upon his direct examination that these conditions and infirmities were due “to the upset of the nervous system by the accident.” *367 The direct injuries to Baus from the accident were a compound fracture o£ the leg, which, ultimately, required the amputation of the leg below the knee, and some injuries or cuts upon the head which were not serious. The doctor also testified that he had not examined Baus to ascertain whether or not he had any other disease. On cross-examination the witness was asked to state what percentage of cases, in his experience, of compound fracture of the leg, resulted, in so late a, date after the happening and treatment therefor, in such a tremor of the hand as was observable in Bans, and ho answered he could not recall any. The witness was further asked: “Q. This man testified that he is fifty-two- years of age; isn’t it true that there are thousands, of people fifty-two years of age who- are suffering with this tremor that he suffers from who have never had a compound fracture of the leg or any other similar injury?” and the answer was, “I don’t know how many at that age are suffering from it. If you mean paralysis agitans, which is the technical term for this trembh'ng, in my experience, it has usually occurred in older people.” He then testified that it may occur in persons as young as thirtjg and that, in his judgment, Baus was not suffering from paralysis agitans; that the tremor was a well-recognizecl sympton of such ailment; the moving of the head another, and that slow and indistinct speech was another, although not prominent symptom, and that such loss of voice was progressive, growing worse as the disease advanced. Thereafter, again the witness asserted positively that Baus was not suffering with paralysis agitans. Also, that that malady was a progressive disease. It was then that the question under consideration was asked and objected to upon the ground that there was no evidence of the disease of paralysis agitans, and the objection sustained. lYe think the question was competent and relevant, and that the overruling thereof was injurious error affecting the substantial rights of the appellant. It must be kept in mind that this witness had testified that this tremor of the hand *368 and head, faulty memory and the hesitating speech, were all the result of the accident and the injuries received therefrom ; had also admitted that they were, at least, some of the symptoms to be found in paralysis agitans, and that that disease was progressive; that he had not known or treated Baus prior to the accident. Baus’ good condition of health prior to the accident had also been testified to. In Prout v. Bernards Land and Sand Co., 77 N. J. L. 719, we said: “Cross-examination on matters, either directly in issue or indirectly relevant to the issue, is a matter of right, and its exclusion is error.” And, again, in the same ease: “Although the court may exercise a reasonable discretion in regulating or limiting the cross-examination, yet it is clearly error to exclude cross-examination on subjects included in the examination in chief, where such ruling is prejudicial. So far as such cross-examination of a witness relates either to facts in issue or facts relevant to the issue, it may be pursued by counsel as a matter of right.” Now, this question went to a subject included in the examination in chief, namely, the cause of the tremor of hand and head and the affected speech, and whether they were attributable to the accident or the result of a pre-existing disease, perhaps, paraylsis agitans. Likewise, it was relevant and competent to the issue, because it bore directly upon the injuries proximately resulting from the accident, and, consequently, upon the amount of damages. It is urged that this rule applies, only to witnesses who are parties to the action and not others. It may be conceded that this is so as to matters not the subject or within the scope of the direct examination, but certainly not where the proposed cross-examination is as to subjects within the scope of the examination in chief. Fahr v. New York, Susquehanna and Western Railroad, 72 Atl. Rep. 69. It is also urged that the rule in Prout v. Bernards Land and Sand Go., supra, is not applicable in the face of section 27 of the Practice act (Pamph. L. 1912, p. 382), “unless, after an examination of the whole case, it shall appear that the error injuriously affected the substantial rights of a party.” But *369 it has since been so applied. Davenport v. Patteson, 98 N. J. L. 65. Furthermore, an examination of the whole case leads us to the conclusion that the exclusion of this question did injuriously affect the substantial rights of the defendant, as we have already endeavored to. point out. It is proper to assume that, if the question had been allowed, the answer would have been that there were no other symptoms. The appellant was entitled to the benefit and advantage of such an answer had it been given, lessening, or, perhaps, totally, destroying the value of the witness’ previous testimony that the tremor of hand and head and faltering speech were the proximate result of injuries sustained in the accident. That he might have made the witness his own witness, or called another who would have so. answered, does not lessen the substantial injury which we find he suffered by the ruling in question. There being error, in the ruling complained of, injuriously affecting the substantial rights of the appellant, the judgment below in favor of the appellant Leonard Baus is reversed and a venire de novo awarded.