McLean v. Cincinnati.

ERROR-WITNESSES.

[Superior Court of Cincinnati, General Term, January, 1906.j

Ferris, Hosea and Littleford, JJ.

(Judge Littleford of the Hamilton common pleas sitting in place of Judge Hoff.

heimer.)

WILLIAM C. MCLEAN, ADMR. v. CINCINNATI (CITY).

1. HYPOTHETICAL QUESTIONS FROM WHICH FACTS OMITTED MAY BE ASSUMED HELD NOT IMPROPER.

A hypothetical question is not improper simply because it includes only a part of the facts in evidence, and counsel may assume the facts in accordance with his theory of them, if supported by the evidence of some of his witnesses. But if the hypothetical question contains material exaggerations of facts, and is unwarranted by any testimony in the case, it is improper and should not be allowed.

2. ERRONEOUS INSTRUCTIONS AS TO OPINIONS OF EXPERTS.

It is error to instruct a jury that the opinions of expert witnesses, based on hypothetical statements of fact, are of little value in case the jury find the hypothesis not in accordance with the facts. The jury should be instructed that the opinions are of no value.

[Syllabus by the court.]

ERROR to special term.

W. C. McLean and D. D. Woodmansee, for plaintiff in error:

Hypothetical questions. Williams v. Brown, 28 Ohio St. 547; Saffin v. Thomas, 4 Circ. Dec. 438 (8 R. 253); East Cleveland Ry. v. Everett, 8 Circ. Dec. 210 (15 R. 181); Vosburg v. Putney, 80 Wis. 523 [50 N. W. Rep. 403; 14 L. R. A. 226; 27 Am. St. Rep. 47]; New Jerusalem Church v. Crocker, 4 Circ. Dec. 619 (7 R. 327); Sharkey v. State, 2 Circ. Dec. 443 (4 R. 101).

J. V. Campbell, for defendant in error.

LITTLEFORD, J.

The petition in this case asks damages for the death of Peter Quincy, who is alleged to have been fatally hurt through the negligence of the defendant. On October 27, 1902, the man was driving along Morris Place about 7 P. M., when his horse ran into an obstruction in the street upon which there was no red light or other warning of danger. The wagon was overturned and fell upon Quincy's leg. His leg and his head were hurt by the fall. His leg was not hurt very seriously, but he had pains in his head, sometimes severe, from the time he was hurt until his death. On December 11, 1902, forty-five days after his injury, he had what his physicians said was a stroke of apoplexy. On December 17, 1902, fifty-one days after his injury, he died.

Superior Court of Cincinnati.

Three distinguished physicians called by the city testified that Quincy could not have died from apoplexy, because apoplexy never results from concussion. They said that brain lesion is the result of concussion, but the symptoms of brain lesion appear immediately after the injury to the head.

Relying evidently upon the testimony of these eminent physicians, the jury returned a verdict for the defendant.

The statements of these three physicians that apoplexy may result from uremia, excitement, overeating, overdrinking, senility, etc., but never from concussion, and that apoplexy is often confounded with brain lesion, were all brought out by a hypothetical question which informed these experts, among other particulars, that Quincy first complained of pains in his head on November 21, 1902, a period of twenty-five days after his injury; that is, the hypothetical question contains the statement that "on November 21 he complained of headache," which, of course, means that he complained then for the first time.

As is said above, the fact is, Quincy had pains in the head from the time of the accident until his death, so that this statement in the hypothetical question is contrary to the undisputed evidence. Basing their opinion upon the hypothetical question containing this incorrect statement, these three physicians called by the city testified to the effect that the chance of Quincy's death being the result of the fall was so remote as to be almost an impossibility. How far these experts erred in their conclusion by reason of this mistake in the facts presented to them is not for a layman to say; but their opinion was of no value to the jury under the circumstances, and the question should not have been permitted. Had these physicians been informed of the true state of facts with reference to Quincy's head, it is not improbable that they would have stated, if it be true that concussion cannot cause apoplexy but may cause brain lesion, that Quincy died from brain lesion, and that his two doctors simply made a mistake in giving apoplexy as the cause of his death, since the two are often confounded. Quincy died from some sort of brain trouble, although he was a healthy man before his injury, and these physicians might have thought there was some connection between the cause of his death and the accident had they been correctly informed as to the facts in the case.

A certain amount of latitude must be allowed in putting a hypothetical question. A question is not improper simply because it includes only a part of the facts in evidence. Stearns v. Field, 90 N. Y. 640. Furthermore, counsel may assume the facts in accordance with his theory of them if supported by the evidence of some of his witnesses, and the court should not reject the question on the ground that in his opinion such facts are not established by a preponderance of the evi

McLean v. Cincinnati.

dence. Quinn v. Higgins, 63 Wis. 664 [53 Am. Rep. 305]. But if the hypothetical question contains material exaggerations of the facts and is unwarranted by any testimony in the case, it is improper and should not be allowed. Williams v. Brown, 28 Ohio St. 547.

The hypothetical question before us is, in our opinion, unwarranted by any testimony in the case. It was not only improper in the respect already mentioned, but there were other objections to it. The question is here given in full:

"Doctor, assume that the deceased was a colored man of fifty-six to fifty-seven years of age; that he had had apparently good health all of his life up to the illness which caused his death; that on the twentyseventh of October, 1902, he had a fall from a spring wagon, on the street; that this fall caused a slight scratching of the skin; that it was treated only by washing and by an application of vaseline; that there was no fracture of the skull, and no treatment by the attending physician except for a slight fever; that there was an injury to the leg which caused the deceased to be laid up for eight or ten days, but which had no bearing on the cause of death; that after the recovery of the leg wound, decedent got up and went about his business; that on the twentyfirst of November he complained of headache and was given treatment for that; that he was up and about attending to his business as janitor until the eleventh day of December, when he went to bed, and showed some symptoms of stupor or paralysis of speech; that he was in a comatose condition from the eleventh of December to the seventeenth of December, on which day he died; that there were no convulsions, that there was no apparent paralysis or paresis of the muscles; that there was no difference in the pupils; that the reflexes were normal; that there was no fever; that there was no incontinence of the feces or urine and no history of heart lesion; that death ensued forty-five days after the injury described; what, if any, connection was there between the injury of October 27 and the cause of death?"

As will be seen from the question, the statement is made that Quincy "had a fall from a spring wagon on the street;" the fact was that the wagon upset and fell upon his leg. Then comes the statement, "that this fall caused a slight scratching of the skin;" the fact was that the man's head was badly hurt. There are other points in this question also, without going farther, which are objectionable; but enough has been pointed out to show that the question in some respects was not warranted by any testimony in the case.

For the reason given we are of the opinion that there was prejudicial error in overruling plaintiff's objection to this question.

In its general charge, the court, speaking of the testimony of the

Superior Court of Cincinnati.

experts in answer to the hypothetical questions, used the following language:

"If the question with this statement of fact put to the witness, upon which he expresses his opinion, does not embody the facts as you find them to have been established by the testimony, then the opinion is of little, if any, value in determining the issues in this case."

This instruction in our opinion was not correct. Rogers, Expert Testimony Sec. 32, says:

"It is proper to instruct the jury to disregard the opinions of expert witnesses, based on hypothetical statements of facts, in case they find the hypothesis not in accordance with the facts."

It will not do under such circumstances to tell the jury that the opinion of the expert is of little value; they must be told that the opinion is of no value.

In New Jerusalem Church v. Crocker, 4 Circ. Dec. 619, 622 (7 R. 327), the court says:

"The jury should have been instructed that if they were of the opinion that any fact assumed by the witness, as the basis of his opinion, was not established by the evidence, they should regard his opinion as of no value, unless his testimony shows that such fact affected only the confidence with which the opinion was held."

In Sharkey v. State, 2 Circ. Dec. 443, 444 (4 R. 101), the following charge of the court below was held to be error:

"I need hardly remind you that an opinion based upon an hypothesis incorrectly assumed, or incorrect in its material facts, and to such an extent as to impair the nature of the opinion, is of little or no weight."

Again, in West v. Knoppenberger, 26 O. C. C. 168, 175, it was held to be error to give the following charge:

"If the questions or the statement of facts put to the witnesses upon which they have expressed an opinion, do not embody the facts as you find them to have been established by the testimony, then the opinion of said experts is of little, if any, value in determining the question in the case."

case.

A very full discussion of the subject will be found in this latter

We think that this error in the charge was prejudicial to the plaintiff, and for the reasons given the judgment of the court below is reversed, and the verdict set aside.

Ferris and Hosea, JJ., concur.

Muench v. Traction Co.

MASTER AND SERVANT.

[Superior Court of Cincinnati, January, 1906.]

FRANK MUENCH V. CINCINNATI TRACTION CO.

1. QUESTION OF FELLOW SERVANTS ONE OF FACT FOR THE JURY.

Whether a coemploye is a superior servant or merely a fellow servant is a question of fact to be submitted to the jury upon evidence as to all the circumstances of the case, and not one of law to be determined by the

court.

2. REPRESENTATIVE CAPACITY OF SERVANT NOT DETERMINED BY Court. The authority of one servant to act in a capacity representative of the master is deducible from the course of business as well as by proof of direct authorization. Hence, in a negligence case, based on the failure of a boss carpenter to give warning of the approach of trucks down an incline plane railroad; there being testimony that on this and other such inclined planes the men were accustomed to give warning notice to each other, and it was inferentially shown that no other provision was made by the company for the protection of the men; requests predicated on the assumption that the relation of superior servant can exist only by direct authorization by the master, or in the absence of a rule providing for warnings, a custom among employes must be shown, so well established and well known to the company as to have the force and effect of a rule of the company, were properly refused. [Syllabus approved by the court.]

MOTION for new trial.

Paxton & Warrington, for the motion.

Horstman & Horstman, contra.

HOSEA, J.

The principal question raised upon this motion relates to the doctrine of superior as contrasted with fellow servants.

The evidence on behalf of plaintiff tended to show that he was at work as a "helper" to Roland, the boss carpenter, in putting in a new stringer to support the track across a drain excavation, and was under his control and direction; that in doing said work it was necessary to stand in said excavation astraddle of the track and stringer to tamp in the foundation stones with a sledge hammer, and that to do said work it was necessary to bend over and downwards in such a position as to be unable to see up the track without interruption of his work; and that during the progress of the work and on previous occasions Roland had given him due warning of the approach of trucks, and he relied upon such warning being given in this instance. Roland admits that he gave the warning too late in this instance because he was "dreaming" or was "absent-minded." There was also testimony showing that in the work of the company on this and other inclined planes the men were accustomed to give warning notice to each other of the approach of trucks;