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83

ical works, instead of their experience in actual practice;s2 hence a question to a physician who made an examination of a person suing for personal injuries, as to whether the absence of external appearance of injury is inconsistent with his medical books, is not improper on the ground that the books are the best evidence of their contents, as the question calls for the witness's opinion as a medical man. The medical expert is generally allowed to state his opinion as to whether the injury for which the action is brought might have resulted from a particular cause. Thus, he may describe the symptoms which would necessarily and ordinarily follow an injury such as that which the plaintiff sustained, for the purpose of showing that his condition is the result of the injury.85 So, a surgeon who describes fully and minutely the character of an injury by which the plaintiff's leg was broken may give his opinion as to the position of the leg and the point from which the blow came.se Medical experts are permitted to testify as to the effects and extent of a personal injury,88—as, for

84

82 Fordyce v. Moore (Tex. Civ. App.), 22 S. W. Rep. 235; Jackson v. Boone, 93 Ga. 662; s. c. 47 Am. & Eng. Corp. Cas. 54; 20 S. E. Rep. 46.

83 Blair v. Madison Co., 81 Iowa 313; s. c. 46 N. W. Rep. 1093. But see Link v. Sheldon, 18 N. Y. Supp. 815.

84 Illinois &c. R. Co. v. Treat, 75 Ill. App. 327; Pennsylvania Co. v. Frund, 4 Ind. App. 469; s. c. 30 N. E. Rep. 1116; Chicago &c. R. Co. v. Spilker, 134 Ind. 380; s. c. 33 N. E. Rep. 280; 34 N. E. Rep. 218; 32 Am. L. Reg. 763; Louisville &c. R. Co. v. Holsapple, 12 Ind. App. 301; s. c. 38 N. E. Rep. 1107; Lacas v. Detroit &c. R. Co., 92 Mich. 412; s. c. 52 N. W. Rep. 745; Donnelly v. St. Paul City R. Co., 70 Minn. 278; s. c. 73 N. W. Rep. 157; Joyce v. St. Paul City R. Co., 70 Minn. 339; s. c. 73 N. W. Rep. 158; Friess v. New York &c. R. Co., 67 Hun (N. Y.) 205; s. c. 51 N. Y. St. Rep. 391; 22 N. Y. Supp. 104; Griffith v. Utica &c. R. Co., 43 N. Y. St. Rep. 835; s. c. 17 N. Y. Supp. 692; Hunter v. Third Ave. R. Co., 21 Misc. (N. Y.) 1; s. c. 46 N. Y. Supp. 1010; aff'g. s. c. 20 Misc. (N. Y.) 432; 45 N. Y. Supp. 1044; Stouter v. Manhattan R. Co., 38 N. Y. St. Rep. 162; s. c. 27 N. E. Rep. 805; Texas &c. R. Co. v. Burnett (Tex.), 16 S. W. Rep. 320; Bowen v. Huntington, 35 W. Va. 682; s. c. 14 S. E. Rep. 217; Block v. Milwaukee St. R. Co., 89 Wis. 371; s. c. 27 L. R. A. 365; 61 N. W. Rep. 1101.

85 Cole v. Fall Brook Coal Co., 159 N. Y. 59; s. c. 53 N. E. Rep. 670; aff'g s. c. 87 Hun (N. Y.) 584; 34 N. Y. Supp. 572.

SG Johnson v. Steam Gauge &c. Co., 146 N. Y. 152; s. c. 66 N. Y. St. Rep. 276; 40 N. E. Rep. 773.

87 Cunningham v. New York &c. R. Co., 49 Fed. Rep. 439; Springfield Consol. R. Co. v. Welsh, 155 Ill. 511; s. c. 40 N. E. Rep. 1034; aff'g s. c. 56 Ill. App. 196; Evansville &c. R. Co. v. Crist, 116 Ind. 446; s. c. 19 N. E. Rep. 310; Louisville &c. R. Co. v. Weed, 113 Ind. 544; s. c. 12 West. Rep. 303; 14 N. E. Rep. 572; Louisville &c. R. Co. v. Wright, 115 Ind. 378; s. c. 13 West. Rep. 798; 16 N. E. Rep. 145; Wilson v. American Bridge Co., 74 App. Div. (N. Y.) 596; s. c. 77 N. Y. Supp. 820; Forde v. Nichols, 36 N. Y. St. Rep. 729; s. c. 12 N. Y. Supp. 922; Austin &c. R. Co. v. McElmurry (Tex. Civ. App.), 33 S.. W. Rep. 249 (no off. rep.); Crites v. New Richmond, 98 Wis. 55; s. c. 73 N. W. Rep. 322. Medical testimony as to the possible effect of provoking language or vexatious circumstances on plaintiff's health is inadmissible in an action for a tort to which these are merely incidental: Hufford v. Grand Rapids &c. R. Co., 53 Mich. 118. But a medical expert may be asked as to whether fright would produce heart trouble: Illinois &c. R. Co. v. Latimer, 128 Ill. 163; s. c. 21 N. E. Rep. 7; Schlee v. New York &c. R. Co., 13

instance, as to the probability of the recovery of the injured person ;89 or whether it is a permanent injury." The opinion of a medical expert witness as to the nature and extent of an injury to a person, is admissible though based in part on the statements of the injured person during a professional examination by the witness; but not where the examination was solely for the purpose of qualifying the physician to testify as an expert,92 nor where the opinion as to the condition of the plaintiff is formed in part from the statements of third persons out of court.93 A medical expert cannot be asked whether the plaintiff is "shamming," as the jury are as well qualified as the witness to pass upon that subject. It has been held proper,

however, to permit the witness to testify whether or not an injured condition of the plaintiff's arm might coexist with the fact of her ability to use it in a manner witnessed by the jury.95

98

§ 7756. Hypothetical Questions.-"Where the evidence is conflicting, or relates to many details, or where inferences of fact must be drawn from the evidence, in order to be reasonably certain of the grounds upon which an opinion is based, it is usually necessary that the facts should be stated hypothetically.""" The hypothetical question should state facts testified to by the witnesses,97 and may assume within the limits of the evidence any state of facts which the evidence justifies. The fact that hypothetical questions to a physician are based in part upon his personal examination and knowledge. does not make them objectionable. It is not essential that the hypothetical question should be based on direct evidence: it may be based on conditions that the evidence tends to prove.100 Thus, a question to a medical expert as to whether the tissue of the lungs can be broken by outside pressure, strong, violent and sudden, if at the time the lungs are inflated, is not inadmissible on the ground that there is no proof that the lungs were inflated at the time of the injury in question, since the lungs would naturally be inflated at intervals of a few seconds only.101

95 Graves v. Battle Creek, 95 Mich. 266; s. c. 19 L. R. A. 641; 54 N. W. Rep. 757.

McCarthy v. Boston Duck Co., 165 Mass. 165; s. c. 42 N. E. Rep. 568. See generally, Southern Bell Tel. &c. Co. v. Jordan, 87 Ga. 69; s. c. 13 S. E. Rep. 202; Mucci v. Houghton, 89 Iowa 608; s. c. 57 N. W. Rep. 305; Bergen Co. Traction Co. v. Bliss, 62 N. J. L. 410; s. c. 41 Atl. Rep. 837; Haviland v. Manhattan R. Co., 40 N. Y. St. Rep. 773; s. c. 15 N. Y. Supp. 898; Collins v. Janesville, 99 Wis. 464; s. c. 75 N. W. Rep. 88; Foster v. Fidelity &c. Co., 99 Wis. 447; s. c. 40 L. R. A. 833; 8 Am. & Eng. Corp. Cas. (N. S.) 687; 75 N. W. Rep. 69.

Kliegel v. Aitken, 94 Wis. 432; s. c. 35 L. R. A. 249; 69 N. W. Rep. 67. An objection to a hypothetical question to an expert, covering substantially the facts in a given case as shown by the evidence, except the rate of speed at which a horse was driven, is properly sustained, where the plaintiff claims that the death of the horse was caused by its being driven at an excessive rate

of speed: Marshall Livery Co. v. McKelvy, 55 Mo. App. 240.

98 Omaha &c. R. Co. v. Brady, 39 Neb. 27; s. c. 57 N. W. Rep. 767; Jordan v. People, 19 Colo. 417; s. c. 36 Pac. Rep. 218.

90 Louisville &c. R. Co. v. Falvey, 104 Ind. 409; s. c. 3 N. E. Rep. 389; 4 N. E. Rep. 908; Louisville &c. R. Co. v. Wood, 113 Ind. 544; s. c. 14 N. E. Rep. 572; 16 N. E. Rep. 197; Kreuziger v. Chicago &c. R. Co., 73 Wis. 158; 40 N. W. Rep. 657; Quinn v. Higgins, 63 Wis. 664; s. c. 53 Am. Rep. 305; 24 N. W. Rep. 482; Selleck v. Janesville, 100 Wis. 157; s. c. 4 Am. Neg. Rep. 352; 41 L. R. A. 563; 75 N. W. Rep. 975; Smalley v. Appleton, 75 Wis. 18; Vosburg v. Putney, 80 Wis. 523; s. c. 14 L. R. A. 226; 50 N. W. Rep. 403; Zoldoske v. State, 82 Wis. 580; s. c. 52 N. W. Rep. 778.

100 Powers v. Kansas City, 56 Mo. App. 573; Smith v. Chicago &c. R. Co., 119 Mo. 246; s. c. 23 S. W. Rep. 784.

101 Tompkins v. West, 56 Conn. 478; s. c. 16 Atl. Rep. 237.

§7757. Damages-Values.-The assessment of damages is peculiarly a matter for the jury, and for this reason opinions directly fixing the amount of the damages are usually inadmissible.102 But this rule is not to be construed to prevent evidence of the value of a particular thing injured or destroyed by the alleged negligence of the defendant, and this fact may be established by the evidence of persons shown to be competent to testify thereto.103

§ 7758. Questions as to Intoxication, Distance, etc., Relate to Facts and Not Opinions.-Whether a person was intoxicated at the time he was injured is regarded rather as a question relating to the existence of a fact or condition and as such to be testified to by any person acquainted with the facts and not necessarily by an expert.10+ The same rule applies to questions of distance, size, color, weight, identity, age and other similar matters.105 Thus, a non-expert witness may give his opinion or judgment as to how far the headlight of an engine throws a light forward and to the right and left of the track.106 So, a person not an expert may give his opinion as to the

102 Little Rock &c. R. Co. V. Haynes, 57 Ark. 497; s. c. 1 S. W. Rep. 774; Central R. Co. v. Kelley, 58 Ga. 107; Central R. Co. v. Senn, 73 Ga. 705; Yost v. Conroy, 92 Ind. 471; Russell v. Burlington, 30 Iowa 262; Upcher v. Oberlender, 50 Kan. 315; s. c. 31 Pac. Rep. 1080; Atchison &c. R. Co. v. Snedeger, 5 Kan. App. 700; s. c. 49 Pac. Rep. 103; Sherman Center Town Co. v. Leonard, 46 Kan. 354; s. c. 26 Pac. Rep. 717; Belch v. Missouri &c. R. Co., 18 Mo. App. 80; Van Deusen v. Young, 29 N. Y. 9; Anderson v. Ogden &c. R. Co., 8 Utah 128; s. c. 30 Pac. Rep. 305; Bain v. Cushman, 60 Vt. 343; s. c. 15 Atl. Rep. 171; 6 N. Eng. Rep. 805; Blair v. Milwaukee &c. R. Co., 20 Wis. 262. An estimate by an injured person of the annual value of his labor, based on the business of a steam-thresher which he had sold out but in which he proposed again to engage, is incompetent to show the extent of his damages, especially where the earnings of the former business were divided between partners in proportions not shown: Boston &c. R. Co. v. O'Reilly, 158 U. S. 334; s. c. 39 L. ed. 1006; 15 Sup. Ct. Rep. 830.

Missouri &c. R. Co. v. Hall, 87 Fed. Rep. 170; s. c. 58 U. S. App. 685; Louisville &c. R. Co. v. Miller, 141 Ind. 533; s. c. 37 N. E. Rep. 343; Shea v. Hudson, 165 Mass. 43; s. c. 42 N. E. Rep. 114; Bowers v. Horan, 93 Mich. 420; s. c. 17 L. R. A. 773; 53 N. W. Rep. 535; Wintringham v. Hayes, 144 N. Y. 1; s. c. 63 N. Y. St. Rep. 16; 38 N. E. Rep. 999; 43 Am. St. Rep. 725; Missouri &c. R. Co. v. Peay (Tex. Civ. App.), 26 S. W. Rep. 768; Gulf &c. R. Co. v. Patterson, 5 Tex. Civ. App. 523; s. c. 24 S. W. Rep. 349. A party may testify to the value of his own services. Spear v. Drainage Comrs., 113 III. 632; Printz v. People, 42 Mich. 144; s. c. 36 Am. Rep. 431; Missouri &c. R. Co. v. Palmer, 55 Neb. 559; s. c. 76 N. W. Rep. 169; Mercer v. Vose, 67 N. Y. 56.

104 Edwards V. Worcester, 172 Mass. 104; s. c. 51 N. E. Rep. 447.

105 Stacy V. Portland Publishing Co., 68 Me. 279; Commonwealth v. Sturtivant, 117 Mass. 122; People v. Eastwood, 14 N. Y. 562.

106

08 St. Louis &c. R. Co. v. Thomason, 59 Ark. 140; s. c. 26 S. W. Rep. 598. Testimony as to the distance at which the rear lights of a train 103 Chicago &c. R. Co. v. Larsen, 19 can be seen is not necessarily the Colo. 71; s. c. 34 Pac. Rep. 477; mere expression of an opinion, but Union &c. R. Co. v. Williams, 3 Colo. may be founded upon observation App. 526; s. c. 34 Pac. Rep. 731; and knowledge: Chicago &c. R. Co.

distance from which a switch target could have been seen at a certain time, where he was acquainted with the condition of the atmosphere and light, the switch and track at the time, and was possessed of ordinary intelligence and eyesight.107 So, a witness who testifies that he heard no bell rung on a locomotive on approaching a crossing, may also testify as to the distance at which he could hear a bell if rung.'

§7759. Appearance or Health of Injured Person is a Question of Fact. A question as to the appearance or health of an injured person or the visible effects of his injuries is in reality a question as to the existence of a fact, and is not generally regarded as calling for the expression of an opinion by an expert witness;109 and such is the case with a description of one's own injuries.110 Thus, a witness, after stating facts within his knowledge, tending to show that the plaintiff in a suit for personal injuries was seriously disabled, may express his opinion that the plaintiff has been unable to perform any duties requiring the slightest physical exercise, and to do anything during his