City of Chicago v. Lamb

Mr. Justice Freeman delivered the opinion of the court. This is an appeal from a judgment recovered by appellee awarding damages for alleged injuries received from falling on a sidewalk. There is evidence tending to show that she was walking with her husband on the walk in question, when the husband stepped on a loose plank in such a manner as to throw one end of it upward in front of appellee’s foot so that she was thrown heavily, down; that she suffered a broken rib; that the pleura has adhered to the inner surface of the broken rib, permanently restricting the movement of the lungs and so limiting her power of movement; that the fall caused a miscarriage, and that she was permanently ruptured in the left groin. It is contended in behalf of appellant that there was error in the admission and exclusion of evidence, and that the award of $3,500 as damages is excessive. It is not disputed that appellee fell as she says she did. It is urged, however, that her evidence itself tends to show that if ruptured at all by the fall, the rupture was slight and not dangerous; but that by the character of his examination of medical witnesses her attorney was permitted to draw out statements incompetent as evidence, and tending to mislead the jury into' the belief that the injury was so serious as to endanger appellee’s life. There is force in this contention. It is not claimed, so far as we are able to discover, that as a matter of fact appellee has any strangulation of the intestine, or that the conditions are such that such a result could reasonably be expected in the future. Yet her attorney conducted the examination of medical witnesses apparently on the theory that the possibility of their occurrence was a proper element of damage. Over objection of appellant’s attorneys the medical witnesses proceeded to state that strangulation of the intestine occurs “ where the bowels come down and the opening of the hernia closes, and it is nearly impossible to get the bowel back. If the bowel stays there any length of time it becomes gangrenous, that means, in some cases, dead. If a hernia can’t be reduced and becomes gangrenous, then it will kill the patient.” The ifs in this testimony are significant, but its application to the facts in the case is by no means apparent. It is true that in reply to a question “ whether this hernia is such a hernia as may become strangulated,” the witness answered, an objection to this line of examination having been overruled, “ Any hernia is liable to become strangulated.” The question was put, “ What, if anything, is the danger to one’s life from that hernia—from a hernia of that kind ? ” An objection having been overruled the witness answered : “ The danger in hernia is strangulation of the intestines.” The Court: “ What is it in this case?”- Answer: “ Strangulation of the intestines.” The witness then proceeded to describe in detail the manner in which a hernia might become “ strangulated,” by the intestines coming through the opening becoming constricted, becoming then clogged with faeces until unable to be moved, and that then gangrene would set in; that this would necessitate a surgical operation, and that in such operation “there is risk of infection.” This evidence is clearly incompetent. It substantially amounts to the statement that if all these things happened in regular sequence, the possible result might endanger appellee’s life. There is nothing, in the evidence to the effect that it was reasonably probable that any of them would happen, or that under ordinary conditions they were even liable to happen. Doubtless it may be true that strangulation of the intestines is a possible danger in cases of hernia. That it is an actual danger in appellee’s case, that it is not readily preventable, that it is a probable result of existing conditions, the witnesses do not pretend to say. The proper object of examining them on this point as experts was to have their judgment whether appellee was in fact suffering from strangulation of the intestines or in the ordinary course of events reasonably certain to be as the result of the rupture. Pearson v. Zehr, 31 Ill. App. 199-202. Their testimony was competent as to appellee’s present condition, its cause and permanence, not as to merely possible future conditions. O’Brien v. N. Y., N. H. & H. Ry. Co., 13 N. Y. Sup. 305. As is said in C. & N. W. Ry. Co. v. Town of Cicero, 154 Ill. 656, “ The weight and value of the testimony of expert witnesses largely depend upon the foundations of fact and reason upon which their opinions stand.” There is danger to a lame man who is not able to move rapidly, if a run-away horse comes along just as he is crossing a street. But in an action to recover from a street railway company for causing the lameness, evidence of such a possible danger and its possibly fatal results would not be tolerated. It is too remote, purely speculative and without doubt incompetent. Many things are remotely possible which never occur, and are never likely to occur. Damages must be based upon actual conditions, not mere speculation. Testimony of this character has been frequently considered by courts of review. In McReynolds v. B. & O. Ry. Co., 106 Ill. 152-156, it is said with reference to certain testimony: “But injury from the other sources of danger above named would be but merely possible. Such merely possible damages do not form a proper basis for the assessment of the amount of damages; it is only such damages that are reasonably probable.” See Jones v. Chicago & Iowa R. R. Co., 68 Ill. 380; see also Conness v. I. I. & I. R. R. Co., 193 Ill. 464-473. Blate v. Third Avenue R. Co., 44 N. Y. Sup. 615, was, lijie that before us, a case of rupture or hernia, in which a medical witness was allowed to state “ what sometimes happens as the consequence of such a condition of things.” The opinion quotes from Strohm v. Railroad Co., 96 N. Y. 306, in which it is said : “Future consequences which are reasonably to be expected to follow an injury may be given in evidence for the purpose of enhancing the damages to be awarded. But to entitle such apprehended consequences to be considered by the jury, they must be such as in the ordinary course of nature are certain to ensue. Consequences which are contingent, speculative, or merely possible, are not proper to be considered in ascertaining the damages. It is not enough that the injuries received may develop into more serious conditions than those which are visible at the time of the injury, nor even that they are likely to so develop. To entitle a plaintiff to recover present damages for apprehended future consequences, there must be such a degree of probability of their occurring as amounts to a reasonable certainty that they will result from the original injury.” To the same effect are O’Brien v. N. Y., N. H. & H. R. Co., 13 N. Y. Sup. 305 (supra); Elsas v. Second Ave. R. Co., 9 N. Y. Sup. 210; Atkins v. Manhattan Ry. Co., 10 N. Y. Sup. 432. The testimony under consideration tended to give the jury an impression not justified by the facts in evidence, that appellee was in danger of losing her life as a direct consequence of a simple hernia or rupture, as to the existence of which there is contradictory evidence. Appellee testified that her second child was born eleven months after the' accident and that she did not commence to wear a truss until three months before that event, or eight months after the accident which is alleged to have been the cause of the rupture. Whatever the facts may be, and wha.t we have said, is not to be construed as expressing any opinion in that respect, as the case must be retried, the evidence complained of was, we think, incompetent, and erroneously admitted. Objection is made that questions to the medical witnesses should have been put hypothetically, In C. & A. R. R. Co. v. Glenny, 175 Ill. 238-242, it is said, quoting from Bradner on Evidence, p. 537: “ Questions put to an expert on direct examination must be framed hypothetically, unless there is no conflict of evidence as to the facts, or the witness is personally acquainted with them.” Here appellee’s medical witnesses testified that they were acquainted with the facts, and the objection is not well taken. The objection is urged that the damages are excessive. It is impossible to say to ’what extent the jury were affected by the prejudicial testimony. Appellant is entitled to have the case retried, and the judgment must be reversed and the cause remanded.