Dempster v. Fite

Clarkson, J. There can be no question that the evidence was abundant to have been submitted to the jury on the question o£ negligence and damage. In fact, there are no exceptions or assignments of error as to the charge of the court below in defendant’s brief. Part Rule 28 (200 N. C., at p. 831), is as follows: “Exceptions in the record not set out in appellant’s brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned by him.” Plaintiff testified that on 4 July, 1930, she had received an injury in an automobile collision and that her pelvic bones had been broken in three places. She went to work after this injury, on 15 November, 1930, and worked steadily thereafter until the collision and injury for which this action was instituted. On the question of injury, Dr. J. Rush Shull, a witness for plaintiff, an expert X-ray specialist, who took X-ray pictures of plaintiff many times and on different occasions, testified in part: “We found in both examinations — 30 and 31 July — the compression fracture of the bodies of the sixth and seventh thoracic vertebrae.” On cross-examination: "This ivas the only place she complained of — I did not take an X-ray of the pelvic region. ... I am confident that there has been a fracture because the vertebrae has come closer together in those two places. Ordinarily the X-ray takes nothing but the bony tissue — does not take the nerves.” Dr. Alonzo Myers, an expert bone surgeon, witness for plaintiff, testified in part: “All of these findings with history, indicated to me that she was having severe pain in her back. ... I felt she must have some injury in the vertebrae and warned her to go to the hospital and have an X-ray made. ... In a few days I got her there and had X-ray made, it showed that she had a fracture of the seventh and eighth dorsal vertebrae. I applied plaster paris cast from her waist to axilla in order to take the motion out of the back. I have kept her under observation since then. Seen her from time to time; had her rechecked by X-ray about every two months. ... In my opinion, based upon experience and study, to mobilize or keep it straight with a cast for a period of a year, and often longer, even though the symptoms have disappeared you will be afraid of reoccurrence, which will make it worse. She has not been able to work since the injury. She will not be able to do anything which will require the use of her spine — certainly not now.” The defendant introduced Dr. C. C. Phillips, an expert, who testified: “The condition of the dorsal spine is the same as at previous examina705 ti-on which we made on 24 September, 1931. It is my opinion that the condition of the vertebras is normal in this individual, and not a result of injury.” Also Dr. O. L. Miller, an expert in orthopedic surgery, who testified: “No evidence of fracture there, no evidence that there has ever been any fracture.” Also Dr. Stephen Gaul, expert, testified: “I have looked at these before and seen no fracture, particularly in the seventh and eighth dorsal vertebrae there is no fracture. ... I don’t see anything that would disturb the functional use of the spine in its ordinary movements. I don’t see anything that would cause pain.” There was no objection on either side to the above opinion evidence. The plaintiff’s expert testifying that there was a fracture of her spine in two of the vetebrae. Defendant’s experts testifying “the condition of the vertebrae is normal, in this individual and not a result of injury”— “no evidence that there has ever been any fracture” — “there is no fracture.” The pelvic bones of plaintiff, which had been broken more than a year before in a collision, before the collision for which this action is brought, the record discloses had gotten well and plaintiff had gone to work. Dr. Myers testified “She had no indication or symptom of pain in her back then, she returned to work after that.” From the evidence we can see no causal relation between the pelvic bone injury and the present alleged injury. Defendant contends that three points are involved: (1) Hypothetical question to medical expert by plaintiff without placing burden on plaintiff to show by greater weight of evidence, the assumed state of facts. (2) Allowing medical expert to testify that certain condition was caused by the accident. (3) Form of hypothetical question propounded to medical expert. On the first aspect defendant contends: “The hypothetical questions propounded by the plaintiff are fatally defective in that they were not based on the hypothesis that the jury should find the facts to be true by the greater weight of the evidence. The burden was on the plaintiff and she must carry the burden continuously throughout the trial.” The defendant cites no authority as to the greater weight of the evidence necessary in the hypothetical questions. On the two issues submitted to the jury in the action, the court below charged correctly, as follows: “The first issue is: ‘¥as the plaintiff injured by reason of negligence of the defendant, as alleged in the complaint?’ The burden of that issue is upon the plaintiff. It is en-cumbent upon plaintiff to satisfy you by the greater weight of the evidence, that is evidence which outweighs or preponderates all other evidence in this case; whether introduced by plaintiff or defendant, that [706] plaintiff was injured by reason of negligence of defendant as alleged in the complaint. Second issue: 'What damages, if any, is the plaintiff entitled to recover of defendant ?’ The burden of that issue is upon plaintiff to satisfy you by the greater weight of the evidence, as to what damage she is entitled to recover.” In Parrish v. R. R., 146 N. C., at p. 126, the hypothetical question begins practically like the ones objected to in the present action: “If the jury find the facts to be from the evidence, that the plaintiff was injured by falling back against the arm of a seat in the train,” etc. The Court found no error as to the form of the hypothetical question in the Parrish case, supra. As to the second aspect “Allowing medical expert to testify that certain condition was caused by the accident”: All the evidence, other than that of the defendant’s expert witnesses, indicated that the impact was such as to cause injury to plaintiff and her condition thereafter. The general principle in regard to expert testimony is laid down in the Parrish case, supra, at pp. 127-8: “We cannot agree with the learned counsel of the defendant that this case bears any resemblance to Summerlin v. R. R., 133 N. C., 550. In that case the questions excluded by the court were so framed as to require the witnesses to express an opinion as to the existence of a fact which was controverted, and it was there said by the Court that this was not the proper form for the question to take, but that the expert’s opinion should be founded upon a hypothetical question containing a statement of facts which the jury might find from the evidence, and supposing, of course, that they will find them to be as stated in the question. (Italics ours.) . . . (p. 128.) The question was not so put to the witness ‘as to require him to draw a conclusion of fact nor to pass upon the effect of the evidence in proving controverted facts,’ but merely to express his opinion upon the facts stated in the question, leaving them to be found exclusively by the jury.” Hill v. R. R., 186 N. C., 475. In the present case, following the precedent in the Parrish case, supra, the hypothetical questions were premised on the jury finding the facts to be from the evidence. Dr. Lewis, in the Parrish case, supra, answered: “In my opinion, the kidney was dislocated by the fall, and the dislocation is permanent, and the plaintiff will be disabled for life, unless he has the kidney removed by an operation.” In the present action Dr. Shull, an expert witness for plaintiff, testified on cross-examination by defendant: “I am confident that there has been a fracture because the vertebra have come closer together in those two places. Ordinarily, the N-ray takes nothing but the bony tissue— [707] does not take the nerves.” On redirect examination, the proper hypothetical question was propounded by plaintiff, as follows: “If the jury should find from the evidence that this young lady on 25 July, 1931, was riding in the rear seat of an automobile on "Wilkinson Boulevard, in Mecklenburg County, and should further find that an automobile traveling at the rate of sixty or sixty-five miles an hour should strike the rear of the car in which she was sitting, breaking the seat in two and throwing plaintiff forward, and if the jury should further find that she immediately complained of her back and should further find in a few minutes thereafter she fainted, and if they should further find that she was taken to the hospital and that since that time she has been unable to perform manual labor, and has been in a plaster cast for the last eight or nine months, have you an opinion, satisfactory to yourself as to what caused the condition you find in the vertebras as disclosed by the X-ray pictures? Answer: Yes, I have an opinion. Q. What is it ? Answer: The accident caused the injury.” Lynch v. Mfg. Co., 167 N. C., at p. 100; Riggs v. R. R., 188 N. C., 366; Shaw v. Handle Co., 188 N. C., 222; Buckner v. R. R., 195 N. C., 654; S. v. Fox, 197 N. C., at p. 486. It must be noted that all the evidence, except that of defendant’s expert witnesses, was to the effect that plaintiff was to some extent injured in the collision. The hypothetical questions were not addressed to the issue of negligence, but on the issue as to the extent of the injury. The answer of the doctor “The accident caused the injury.” Taking the question and answer together, on the question of damages, we do not think the answer impinged the jury rule to such an extent that it should be held for prejudicial or reversible error. In the Parrish case, supra, the cause and extent of the injury was stated and this was not held to be error. We can see no error in the question propounded to the expert Dr. Shull, and his answer thereto: “Yes, I have an opinion from my examinations and X-ray as to whether this girl’s injury is permanent. Q. What is that? Answer: It is total and permanent.” * In Martin v. Hanes Co., 189 N. C., at p. 646, Adams, J., we find: “These cases enunciate the principle that, while a medical expert may not express an opinion as a controverted fact, he may, upon the assumption that the jury shall find certain facts to be as recited in a hypothetical question, express his scientific opinion as to the probable effect of such facts or conditions.” On the third aspect: “Form of hypothetical question propounded to medical expert” — The form and answers to the hypothetical questions [708] may not be as technical as perhaps they should be. In N. C. Handbook on Evidence (Lockhart) 2d ed., p. 240, part sec. 203, the following observations are made: “The general rule is that opinion evidence is inadmissible, and the triers of a matter in dispute — the judge or the jury as the case may be — -draw their conclusions from facts testified to before them, and not from opinions expressed by others. There are three classes of exceptions to the above rule. The court will admit (1) opinions of experts, (2) opinions on the question of identity, and (3) opinions which, from necessity, must be received. . . . (Sec. 204.) An expert may express an opinion, hut he must base his opinion upon facts within his own knowledge, or upon the hypothesis of the finding by the jury of certain facts recited in the hypothetical question. . . . (Sec. 209.) As pointed out, the exceptions to the opinion rule as based upon the justification that the ends of justice may be more readily met by assisting the jury with the opinion testimony. Assuming that the requirement of relevancy is taken care of, the court is then confronted with two queries: (1) Is the province of the jury invaded? (2) Will the opinion materially assist the jury ? In the application of the queries to the particular case, while the courts have attributed various reasons for the exclusion or admission of the testimony, it is submitted that no rules, nor formulas, can be satisfactorily deducted from the results reached.” In Cochran v. Mills Co., 169 N. C., at p. 64, Walker, J., said: “The questions to the expert were properly framed and were supported by evidence. Summerlin v. R. R., 133 N. C., 554; Parrish v. R. R., 146 N. C., 125; Shaw v. Public-Service Corp. (168 N. C., 611), supra. Besides, it' appears that upon striking a general balance the advantage of all the questions and answers was largely in favor of defendant. If there has been error, no harm would have resulted to defendant.” In the present action plaintiff had two experts and defendant three, testifying in regard to the injury. The defendant's three experts testified there was no injury, the plaintiff’s that there was. On all the facts and circumstances of this case; conceding, but not deciding there was error, we cannot hold it as inejudicial or reversible. In the legal battle as to opinion evidence between the able counsel in this action, it seems as if “honors were easy.” The questions of fact were decided by the jury in favor of the plaintiff. We find in law No error.