United Railways & Electric Co. v. Corbin

This is an appeal from a judgment rendered in favor of the appellee against the appellant for injuries alleged to have been sustained by her on Howard Street in the City of Baltimore, through the negligence of the defendant. The narr. alleges that by and through the negligence and carelessness of the defendant one of its wires, charged with electricity, "fell down in said plaintiff's way on said Howard Street from its elevated and proper position and came in contact with the plaintiff and gave her an electric shock, and while it was falling towards said plaintiff said wire was discharging great sparks of electricity, and as a result of the falling of said wire, as aforesaid, which was caused by the negligence of said defendant, its agents and servants, the said plaintiff was placed in a perilous position, and in her efforts to extricate herself from said dangerous position, and to get out of the path of said falling and electric light wire, the plaintiff was seriously and permanently injured and damaged to her nervous system and she was injured about her body and otherwise," etc. The wire which dropped into the street is what is called a span-wire and was stretched across the street to hold up the wire on which the trolley runs. It was in some way pulled out of the ring which holds it to the pole and it fell over the trolley wire, thereby becoming charged with electricity. The plaintiff contended that coming in contact with the wire caused the injuries, while the theory of the defendant was that so far as she sustained any injuries they were the result of fright and not from contact with the wire.

The evidence on the part of the plaintiff was to the effect that she was left in a very serious nervous condition, became unconscious at times, suffered from convulsions, etc. Her physicians testified that she was suffering from "traumatic hysteria" — which was described by them to be hysteria produced by shock or injury, as distinguished from that caused by disease. *Page 449 Ten exceptions were taken to the rulings of the Court on the evidence, and the eleventh embraces the rulings on the prayers. The Court granted the two prayers offered by the plaintiff, and the sixth, ninth, eleventh, twelfth, thirteenth, seventeenth, eighteenth, nineteenth and twentieth offered by defendant, and rejected its first, second, third, fourth, fifth, seventh, eighth, tenth, fourteenth, fifteenth and sixteenth, and overruled its special exception to the plaintiff's first. The first, second and third exceptions can be considered together. Dr. Baum had testified that from the history of the case he had received he concluded that "the results of this case were the results of a shock." He was then asked: "When you say from your examination of the case you diagnosed it as traumatic hysteria or nervous condition produced by shock what kind of a shock do you mean?" To which he replied: "Well from the history I elicited it was rather an electric shock or fright." Perhaps the word "rather" in the record was intended to be "either." He was then asked: "Tell the jury whether or not her condition could have been produced by fright merely without receiving an electric shock, or by the electric shock, if you say it could have been produced by either; tell them which, in your judgment, was the most probable cause of it." That question was objected to, but the Court overruled the objection, and the witness answered: "It is probable for either to have caused it; it is possible for an electric shock to have caused it; it is my opinion that an electric shock would have caused her condition." That ruling is presented by the first exception.

His testimony then proceeded: "You have said either of them could; it is possible either of them could? A. Yes, sir. Q. Are you able to say as a physician, from her condition as you found it, which, in your judgment, probably caused her condition — shock from mere fright or electric shock?" The latter question was objected to, but, the objection being overruled, he answered: "I would say that the more probable was electric shock." That constituted the second exception; and immediately after that answer, the defendant made a *Page 450 motion to strike it out, which the Court refused, and that ruling is embraced in the third bill of exceptions. It was said in Williams v. State, 64 Md. 384 , that an expert "may give an opinion not only as to the nature and effect of an injury, but also the manner or instrument by which it was inflicted." In 17 Cyc., 234, a great many illustrations are given of what medical experts are permitted to testify, amongst them "what he would judge was the cause of certain symptoms under given circumstances; which among several possible causes was the probable or approximate one." But while great latitude has been allowed in the examination of medical experts, they should not be permitted to express their opinions merely because they are physicians, but experts must be confined to subjects about which they are, or are presumed to be, acquainted.

If a physician does not know more about the effect of a given cause than jurors or other people do, his opinion can be of no service in enabling the jury to reach a proper conclusion. This Court said in Dashiell v. Griffith, 84 Md. 377 : "It is an unsafe practice in the admission of testimony to allow witnesses to speak as experts unless the Court is well satisfied that they possess the requisite qualifications; not alone on this account, but the effect of such testimony is most difficult to estimate, from the fact that undue importance not infrequently attaches to it and gives to it an influence upon the minds of a jury to which it is not fairly or reasonably entitled." A physician may be a very intelligent man, and may be very well versed in his profession, but that does not make him competent to speak as an expert of things he is not specially acquainted with. In this case there was no evidence that the plaintiff was injured in her efforts to extricate herself from a perilous position, as alleged in the latter part of the above quotation from the narr., and the question raised by the pleadings and evidence was whether the wire "came in contact with the plaintiff and gave her an electric shock." Indeed, one of the prayers afterwards granted instructed the jury that if they believed the plaintiff received no bodily injury from contact *Page 451 with the electric current emanating from the broken wire, but that her bodily injury and present condition were due to fright or nervous shock, caused by the flash or noise produced by said electric current, then the plaintiff was not entitled to recover, and the plaintiff's own prayer required the jury to find that the wire came in contact with her peerson or clothing and gave her an electric shock. The case as submitted to the jury was practically the same question asked Dr. Baum in the second bill of exceptions, excepting he was asked which of the two shocks probably caused her condition.

Now if it be conceded that it is proper to ask a medical expert which of two possible causes was the probable or approximate one, surely he must be shown to have such knowledge of the effects of both as to be able to speak intelligently of them. This witness had not only not qualified himself as an electrical expert, or as a medical one acquainted with the effects of an electric current, but his cross-examination shows that he was not so qualified to speak. We will quote it: "Q. What kind of electric shock would she get if the wire did not touch her person? A. Apparently the wire might shock from fright; it is my opinion that it was the electric shock; whether there was contact was the question; I think you had better let some electrical expert explain that." Mr. Field: "You are not an electrical expert?

A. No, sir. Q. You answer this was an electric shock; I did not know whether you meant a shock from electric current or fright produced by the electricity? A. I am unable to determine what the amount of the shock was received or anything of the sort. Q. If the testimony shows that there was no contact between the wire and the person would you still say this party was suffering from an electric shock?

A. I am unable to answer that." It is true that evidence was not in the record when the rulings on these exceptions were made, but it emphasizes the importance of seeing that a witness is qualified to speak as an expert before admitting his testimony. It shows that the opinion expressed by the witness was not founded on any special knowledge which qualified him as an expert. The theory *Page 452 of the defense was that there was no contact between the wire and person, and yet the witness said he was unable to answer the question last above quoted. He had already said that the plaintiff's condition might have been caused by fright without receiving an electric shock, or by an electric shock, and although he is not an electric expert, and has not shown that he knew what effect on the body an electric current would have, if the wire did not come in contact with the person, he was permitted to testify: "I would say that the more probable was the electric shock." The answer to the question in the first bill of exceptions is not so objectionable as that in the second, for it only went to the extent of saying that it was probable that either fright or an electric shock might have caused her condition, but by the answer to the question in the second bill of exceptions he in effect said that an electric shock caused her condition.

Again, the question assumed that either the shock from mere fright or an electric shock caused it, and was for that reason objectionable, as the defendant did not concede that it was caused by either, but on the contrary offered evidence tending to show other causes which were in part, at least, responsible for her condition. The question in the first exception was not altogether free from that objection, but the answer could not have done any particular harm, as we suppose that it cannot be denied that it was possible for an electric shock to have caused the condition of the plaintiff, but there was reversible error in allowing the question in the second bill of exceptions to be answered, and in not striking out the answer when the motion was made. The answer was not really responsive to the question, as the witness did not say whether he was able to say as a physician which probably caused her condition, but he proceeded to give his opinion. We do not understand the fourth exception to be pressed.

The fifth was to allowing the attending physician of the plaintiff to answer the question, "Whether or not a young woman in her condition is in a condition in which it would be proper for her to marry." The ground of the objection urged *Page 453 is that the question did not state what condition was referred to, but on cross-examination he was asked what condition he did refer to, and replied: "I referred simply to her nervous condition, the condition of her nervous system." The appellant was not therefore injured by reason of the condition referred to not being more explicitly stated in the question. But regardless of that, a similar question was asked Dr. Wilson, the answer to which went before the jury without objection. While we do not think there was any reversible error in the ruling of the Court, such testimony ought not to be admitted, as such opinions of physicians must be more or less speculative or conjectural, if not misleading, when they are based entirely upon the nervous condition of parties. The seventh exception was to the following question asked Dr. Baum: "Will you kindly tell the gentlemen of the jury what will be the ultimate effect of the condition from which the plaintiff is suffering, as you have testified, upon her mind?" to which he answered: "My opinion is that it will progress and that she will eventually lose her mind." That is objected to because Dr. Baum had laid no foundation as an alienist to give such testimony.

In answer to that it may be said in the first place that he had been a practicing physician since 1895, is a graduate of the Baltimore Medical College, and was connected with the Maryland General Hospital for six years. He attended the plaintiff when she received the injuries complained of for four or five days; was then called in again on May 10th, saw her then and the next day, and her condition was such that he called in Dr. Wilson in consultation. He advised her to go to the country so as to avoid excitement, and did not see her again until a few days before the trial. There would seem to be no doubt under these circumstances he was competent to express his opinion as to her mental condition under the decisions in Crockett v. Davis, 81 Md. 134 , and Jones and Collins, 94 Md. 403 .

It cannot be doubted that there may be cases in which the opinions of physicians on such subjects may have undue weight. The opinion of a family physician of a juror will *Page 454 naturally have more influence on him than that of some other physician whom he does not know, or does not have the same confidence in, and hence trial Courts ought to be careful to see that a physician so called upon to testify has either had the opportunity to form a correct opinion from his own knowledge of the person whose mental condition is being inquired into, or that it is based on all the facts in the case reflecting on the subject, which facts the Court should be satisfied are sufficient to enable him to form an intelligent opinion from. The weight of the testimony is for the jury, but its admissibility is for the Court to determine. But the law of this State does not require the physician to be an alienist — in the sense that he is a specialist in that line.

If such were the law it would often deprive the jury of such aid as an honest and intelligent physician could give them in reaching a proper conclusion. It would greatly add to the expense of such trials, and would often deprive those of limited means of medical testimony, if no one but a specialist should be permitted to testify. As was said in Crockett v. Davis, on page 149 of 81 Md., in giving the reason why a physician can testify as to the mental condition