Stefanacci v. Borden's Farms Products Co.

The opinion of the court was delivered by Lloyd, J. This case grew out of a collision occurring August 31st, 1922, at the intersection of River Drive and Gregory avenue, in the city of Passaic, between a car operated by the plaintiff Joseph Stefanaeci and a horse-drawn truck of the defendant. The plaintiffs claimed to he injured and were awarded verdicts by the jury in the Passaic Circuit of the Supreme Court. *161 The grounds of appeal are the denial of a motion for a non-suit and alleged trial errors. To properly consider the motion for a. nonsuit a short statement of the facts the jury could deduce from the evidence is necessary. The plaintiffs were driving north on the easterly side of River Drive and the defendant’s team was being driven by its employe in a southerly direction on the westerly side of the same street. On the west side of River Drive are located the rails of an electric railway, and when the railway tracks reaches Gregory avenue it turns eastward across River Drive and into that avenue. The defendant’s truck was proceeding in the rails, and, reaching Gregory avenue, turned with them rapidly, and without warning, to the east. When it reached the easterly side of River Drive it collided with the plaintiffs’ automobile, striking it on the left side and injuring its occupants. The motion for a non-suit was rested on the ground that no evidence of negligence in the defendant’s driver was shown, but this motion was, in the colloquy which ensued, discussed as though it embraced also the contributory negligence of the plaintiff. Without sanctioning the latter as a sufficient method of presenting the legal status of the plaintiffs’ conduct to the court, it is sufficient to say that the motion was properly denied as to both grounds. There was ample evidence of negligent operation of the truck, and whether the plaintiffs should have anticipated the turn with the tracks into Gregory avenue, was peculiarly a jury question, and one which could not be assumed by the court. During the progress of the trial Joseph Stefanacci was asked on cross-examination if he had an arrangement with Mr. Ward (his counsel) for the latter to obtain a portion of any money he might obtain. The question was overruled, and, we think, rightly. It was irrelevant to the issue, and, if introduced to affect the credibility of the witness by reason of interest, its effect would be to the contrary. Instead of establishing interest sharing with counsel the proceeds of the trial would tend to lessen that interest which the plaintiff is *162 otherwise presumed to have. In the case of Railroad Co. v. Dailey, 37 N. J. L. 526, such a question was held admissible, but only if the purpose were to show a corrupt bargain. No such claim was here made. The remaining objections refer to rulings by the court on questions propounded to medical witnesses. One of these addressed to Dr. Kroll asked if his experience had been sufficient for him to form an opinion as to the effect a concussion of'the brain could have upon a man who had an injury' to the brain and thereafter suffered dizziness and loss of memory. To the question objection was made that “it lets the witness judge, and is not an opinion.” Whether the witness qualified as an expert was, of course^ a court question, but the extent to which his knowledge may permit him to speak on matters within the purview of his science is a medical question on which he and those alike qualified could best express an opinion. It is a form of inquiry frequently met with in the trial of causes of this nature, and seeks to elicit from the witness the possibilities in the science itself or the extent of his own attainments in the science. There are bounds to- medical knowledge, and it is not improper that we should ascertain those bounds from him whose training and experience qualify him to speak. The doctor was also asked if his reading and study entered into the opinion he had given. To this, as answered in the affirmative, no objection appears in the record, but immediately following a motion was made to strike out the doctoPs testimony as based on his reading and study. The motion was properly denied. It is by reading and study, as well as by experience, that the expert becomes such. To deny him the right to use these, when called as an expert witness, would be to frustrate the whole theory- upon which the trained mind is admitted to express opinions in a court of justice-. The remaining assignments are covered in principle by the views herein expressed. Finding no- error in the trial, the judgment is affirmed. *163 For affirmance — The Chancellor, Chief Justice, Trenchard, Minturn, Black, Katzenbach, Campbell, Lloyd, White, Van Buskirk, Clark, McGlennon, JJ. 12. For reversal — Hone.