Ferguson v. Truax

Siebeciceb, I. 1. Tbe appellant urges that the hypothetical questions propounded to four doctors respecting the-cause of plaintiff’s present condition of health and the progressive character and permanency of his illness, besides assuming certain specific facts, embraced an assumption that, the plaintiff’s evidence as to his height, weight, nervous condition, pain, the suffering endured by him up to the time of the trial, and his ability and inability to work was true. Erom an examination of the record it appears that the evidence of the plaintiff was conflicting and contradictory upon-the subjects covered by the hypothetical questions as to his-nervous condition, the amount of pain and suffering he had' endured, and his ability to work. In some of the questions the truth of like evidence of the father of plaintiff and of" the evidence of Drs. Sazarin and Adams bearing on his condition and health was assumed. The doctors to whom these-questions were propounded had attended the trial and heard the evidence of plaintiff, his father, and the doctors upon the-subjects included in the hypothetical questions. The evidence on these subjects is so complicated and voluminous that a difference in understanding the material facts is so probable as to raise doubts as to what facts were considered as true-when these experts gave their opinions. These conditions-render it well-nigh impossible to ascertain upon what facts the experts based their opinions. Such a state of the case-renders the opinions given uncertain and unreliable, and likely resulted to the great prejudice of the party against whom it operated. As was declared in Bennett v. State, 57 Wis. 69, 14 N. W. 912: “The jury should in every case distinctly understand what are the exact facts upon which the-expert bases his opinion.” This and other cases in this-court clearly point out the necessity of stating the facts in the-hypothesis in this class of cases, and show that a failure so to do is prejudicial. Cornell v. State, 104 Wis. 527, 80 N. W. 745, and cases there collected. — 641 — 2. Tbe deposition of the witness Irwin was offered and received to impeach Dr. Thompson. It appears from this deposition that conversations had been held between them as to Dr. Thompson being a witness for the plaintiff on the trial of this case. Irwin states, in effect, that Dr. Thompson intimated to him in these conversations that if he were paid for his time and expenses by either party he would, if necessary, testify falsely for such party. To make this evidence competent as impeaching evidence it devolved on plaintiff to lay the foundation by asking Dr. Thompson specifically whether he had made such a statement, specifying the details and calling attention to the time, place,. and occasion, and, if the doctor denied having had such a conversation or failed to answer the inquiry, then Irwin’s testimony of them would be admissible for impeachment. This foundation was not laid, and Irwin’s evidence was erroneously received for the purpose of impeachment. Dufresne Weise, 46 Wis. 290, 1 N. W. 59; Stone v. N. W. S. Co. 70 Wis. 585, 36 N. W. 248; Hunter v. Gibbs, 79 Wis. 70, 48 N. W. 257. Respondent’s counsel insists that Irwin’s deposition as to these conversations was properly admitted as impeaching evidence under a stipulation made before the trial, and relies upon letters between him and appellant’s counsel containing such a stipulation. This claim is not conceded by counsel for appellant, and counsel have presented nothing in the record sustaining this claim, nor has examination of the record disclosed anything to support it. Under these circumstances we cannot assume that such a stipulation exists. 3. Upon the issue of whether or not the plaintiff at the time of accident was riding in the elevator for pastime or amusement, or for the purpose of going to Dr. Thompson’s office to ascertain if the doctor had any work for him, the court submitted the following question: “Was the plaintiff at the time of the accident on his way to Dr. Thompson’s office to visit the doctor ?” The court refused to submit the fol — 642 — lowing additional question requested by appellant: “Had Dr. Thompson, prior to tbe accident, invited plaintiff to come to his office ?” No instructions were given to the jury upon the question so submitted to them. It is argued that an affirmative answer to the question submitted in no way informs the court whether the jury found that plaintiff took the elevator to go to Dr. Thompson’s office for the purpose of rendering services for the doctor or merely did so for his amusement and pastime. The question and answer must be considered in the light of the facts and circumstances of the case. Plaintiff testified that he went to the doctor’s offices, pursuant to a previous arrangement, to ascertain if the doctor wanted some service rendered. The defendant denies that any such arrangement existed, and asserts that plaintiff theretofore had rendered no services for the doctor. From the evidence it is apparent that the jury must have arrived at one of two alternatives — either that plaintiff was on his way to the doctor’s offices in response to his invitation, or that he was not on his way to the doctor’s offices, but was merely riding in the elevator for his pastime or amusement. Under these circumstances the finding is sufficiently definite and clear to establish the fact that the jury found that plaintiff took the elevator to go to the doctor’s offices for the purpose testified to by him, and that the visit was not a mere pretense for riding in the elevator for his pastime and' amusement. 4. Exception is taken to the instruction defining the degree of care imposed on defendant to keep the elevator in an ordinarily safe condition for carrying passengers. The court instructed the jury: “By the ‘highest practicable degree’ of care is meant such care as. a very prudent and skilful man would ordinarily use in a similar case under the same or similar circumstances.” On the former appeal of the case (132 Wis. 478, 490, 110 N. W. 399) the court referred to the case of Oberndorfer v. Pabst, 100 Wis. 505, 76 N. W. 338, as declaring that: — 643 — “It is tbe duty of tbe proprietor of au office building to see tbat tbe passenger elevators operated by bim therein are' properly and safely constructed, and tbat they are operated with tbe highest degree of shill and care commensurate with or proportionate to tbe possibility of injury to passengers using them.” It is also stated in the opinion on tbe former appeal in this case tbat tbe standard of care respecting safety in tbe operation of passenger elevators is tbe same as tbat exacted of passenger carriers by railroad. As to tbe, standard of care demanded of tbe latter, tbe following taken from Eetter on Carriers was approved as expressing tbe rule on tbe subject: “For the safety of their passengers, common carriers are required to exercise tbe highest degree of care reasonably to be expected from human vigilance and foresight, in view of tbe mode and character of tbe conveyance adopted and consistent with tbe practical prosecution of their business.” 1 Fetter, Carriers, § 8. Expressing tbe elements of this rule in other terms, it imposes on carriers of passengers tbe highest degree of care tbat men of reasonable vigilance and foresight ordinarily exercise in tbe practical conduct of such business under tbe same or similar circumstances. Tbe instruction given by tbe court imposes as tbe standard of care that which is ordinarily exercised by tbe very prudent and skilful man. Tbe instruction embraces tbe elements of similar circumstances and usual conduct of a class of men, but imposes tbe standard of care which is exercised by the very prudent and skilful class of men instead of tbe ordinarily prudent and skilful class of men. This exacts a higher degree of care of defendant in operating this elevator than tbe law imposes. Reliance is placed on tbe language used in Warner v. Chippewa Valley E. R. Co. 108 Wis. 319, 84 N. W. 423, wherein tbe special verdict and tbe charge are criticised as imposing a wrong standard of care on carriers of passengers. It is urged tbat tbe charge and special verdict in tbe instant case — 644 — are in effect the same as in that case and therefore erroneous. The criticism of the charge and the verdict in the Warner Case does not specifically point out what language there employed in defining the standard of care involved in the case was held misleading to the jury, and the grounds of criticism are therefore somewhat obscure. It is, however, manifest that the court adopted and approved the standard of care imposed on carriers of passengers as embodied in the quotation above taken from 1 Fetter on Carriers of Passengers, § 8. The i*espondent contends that this erroneous instruction was not prejudicial because the court should have held as matter of law that defendant was negligent as found by the jury. We cannot approve this contention under the facts and circumstances of tire case, nor do we find justification in the record for defendant’s claim that there is no credible evidence showing negligence. The facts and circumstances material to this question are such that the jury might well have drawn different inferences respecting defendant’s cai*e in keeping the elevator in an ordinarily safe condition for carrying passengers, aixd the question was properly submitted to the jury for determination. Ferguson v. Truax, 132 Wis. 478, 488, 110 N. W. 395, 111 N. W. 657, 112 N. W. 513. 5. Appellant contends that the verdict covering the litigated questions whether or not plaintiff at the time of accident was on his way to visit Dr. Thompson at his office, and whether, or not he had prior thereto been forbidden by de>-fendant’s agents to ride in the elevator, is not supported by the evidence. It is conceded that plaintiff testified to facts tending to support these findings, but his testimony upon the different trials and the preliminary examination is vigorously assailed as of no weight and credibility because of its many contradictions and conflicts upon many material phases of the case. We need not specify these alleged conflicts and contradictions. It is manifest that they exist. The appellant’s contention is, in substance, that plaintiff’s evidence is — 645 — removed out of tlie field of credibility upon the ground that its weight and credibility are destroyed by its contradictions and conflicts, and because his evidence is impeached by the evidence of other witnesses. This claim is not of that class wherein the evidence of a party is obviously false in the light of reason and common knowledge and because it is contradicted by well known physical facts. The credibility of plaintiff’s evidence must be determined by the weight and credibility of the conflicts and contradictory statements of the plaintiff and the other witnesses in the case. The inquiries thus presented embrace many ingredients dependent upon the evidence of the plaintiff and the respective witnesses and the weight of their testimony upon the subjects involved. Determination of these questions is peculiarly within the province of the jury as the tribunal to which is committed the trial of the facte. "We are of opinion that the court properly submitted the issues covered by questions 3 and 4 to the jury for determination. We are also satisfied that the question of contributory negligence on the part of plaintiff was properly a question for the determination of the jury. 6. Complaint is made on account of remarks made by plaintiff’s counsel to the jury to the effect that Dr. Thompson had been induced to testify falsely in consideration of money paid him by the defendant, and another statement by counsel that Dr. Sazarin had testified that plaintiff’s hands were not burned by contact with the elevator hand cable when the elevator fell. The facts of the case furnish no justification for such remarks. These, as well as other remarks which the trial court condemned in its ruling, show that counsel transgressed the proper limits in presenting the case to the jury. In the very nature of the case they would tend to inflame the minds of the jury and tend to arouse them to action controlled by prejudice, to the injury of the defendant. Upon consideration of the foregoing assignments of error it necessarily follows that the verdict and judgment cannot — 646 — stand and tbat a new trial must be granted. We need not consider other questions raised and argued. By the Court. — The judgment is reversed, and the cause remanded for a new trial. The following statement was added to the opinion December 4, 1908: Pee Cueiam. In view of the fact that it was necessary to order a new trial of the case for errors committed' on the trial, this court deemed it advisable not to consider the question of whether or not the amount of damages found by the jury was excessive, and therefore that question was not decided, though an exception thereto was presented and fully argued on, this appeal"'of the case.