Walchuck v. Harting

Per Curiam. In an automobile accident case, in which liability was admitted, the jury rendered a verdict in favor of the appellant for $6,750. The appeal challenges the ruling of the trial court in declining to permit counsel for the appellant to reopen the case in order to read to the jury certain parts of the appellant’s pretrial deposition and also presses an objection to a “hypothetical” question posed by counsel for the appellees to a medical witness. The sole issue in the case was the extent of the plaintiff’s personal injuries caused by the accident.

In cross-examination of the appellant, counsel for the appellees sought to elicit the fact that he had not complained about pain in the lower back when he first consulted his family physician, Dr. Henderson, after the accident. His attention was called to his pretrial deposition in which he replied to a question as to what he told the Doctor as to the part of his body that was hurt, by stating: “At that time I was starting to hurt right up between my shoulder blades.” Counsel for the appellees did not bring out that in reply to a subsequent question as to what he told the Doctor he replied: “I told him my back was hurting. He told me he couldn’t see to my back, he would send me for x-rays”. It may well be that the subsequent allusion to “back” referred to the portion of the back between the shoulder blades rather than the lower back where it was claimed that the accident caused an aggravation of a pre-existing spinal defect.

In any event counsel for the appellant had an opportunity to clear the matter up on redirect but