Vale v. Campbell , 123 Or. 632 ( 1928 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] In Banc.

This is an action to recover the sum of $26,000 damages alleged to have been suffered by plaintiff as the result of alleged negligence in the treatment of a broken femur by defendant. The jury returned a verdict in favor of the defendant and plaintiff appeals.

Plaintiff assigns seven errors: First, order of the court disallowing plaintiff's challenge to a juror; second to sixth, inclusive, the court's ruling on admission of testimony, and, seventh, the court's refusal to give plaintiff's requested instruction and giving, instead, a modified instruction. AFFIRMED. It has been so often held by this court that the order of the court on the question of actual bias of a prospective juror is discretionary, that such ruling should be considered the settled law of the state. A leading case announcing this principle is State v. Armstrong, 43 Or. 207 (73 P. 1022), quoted at length with approval in State v. Brumfield, 104 Or. 506,525 et seq. (209 P. 120.) The trial court did not abuse its discretion in overruling plaintiff's objection to the juror in the instant case.

Plaintiff complains of the court's ruling permitting defendant to cross-examine plaintiff's wife regarding calling defendant to the hospital. Probably the question objected to was not strictly cross-examination. The extent of cross-examination rests largely in the discretion of the circuit judge. Neither the question nor the answer was prejudicial to plaintiff's cause of action.

Plaintiff complains of the admission of testimony regarding X-rays taken of the injured femur but not produced at the trial. Evidence was given to the satisfaction of the presiding judge that the X-rays could not be found. The witness was permitted to testify that the X-rays, in effect, supported the diagnosis of the injury. Inasmuch as there is no controversy in the pleading or the evidence as to the nature of the injury suffered by plaintiff, such testimony, if objectionable, was harmless. Proper showing was made that the X-ray photographs were lost and it did seem that evidence of the disclosures made by them would be admissible although the photographs were not produced. The testimony admitted was not prejudicial.

The trial court must be sustained in ruling the attempted cross-examination of defendant, regarding the contents of his answer, to be improper. The question propounded was argumentative and did not call for any fact. Defendant's answer was before the court. If there was contradiction between it and defendant's testimony, such contradiction was a proper subject for argument before the jury. It was not proper examination to argue the question with the witness.

The court properly ruled regarding X-ray pictures taken by or under the direction of three physicians chosen for that purpose by the parties to the case. It was proper examination to have said physicians, while witnesses, testify to the results of that examination. The X-rays themselves were admissible as evidence but only when supported by the testimony of the party taking them, or an expert who knew them to show accurately the true condition of the object represented thereby. X-ray photographs are used as other maps, plats or representations of physical objects are employed as evidence. They are valuable only when supported by the testimony of a person. They are used for illustrations. X-ray photographs differ from ordinary photographs in this, that the ordinary person is not sufficiently familiar with them to be able at all times to discern what they represent. It is competent for one who is an expert in such matters to explain the X-rays under proper supervision, so that the court and jury may view the picture as the witness does: 1 Wigmore, p. 893 et seq., §§ 790-795, incl.; 22 C.J. 992, § 1245; Yarbrough v. Carlson, 102 Or. 422, 426 (20 P. 739).

Plaintiff complains of the court's ruling on the objection made to the following question asked Dr. Pickel while testifying in behalf of defendant:

"Doctor, I will ask you to state, in the treatment of the fracture of a right femur bone, what results have you usually obtained in your own practice in cases of oblique fracture of right femur bone?"

Objection to this question was made because it calls for the particular experience of a witness rather than the standard of practice in the community where plaintiff was treated, or similar communities. The question is subject to criticism. The answer, however, of the witness shows clearly that he had in mind the general result of treating such cases in communities similar to Klamath Falls, where plaintiff was treated. This is his answer:

"I think the result, the percentage of results in all cases of fracture of femurs are that they get a perfect result in only about 30% of the cases, what is termed a perfect result, not a perfect result meaning that there would be absolutely no shortening — what I mean by perfect result is a perfect alignment, perfect in strength, with absolutely no after pains or no stiffening of any proximate joints — that is, like stiffening of the knee joint — in all those cases, shortening is to be expected, that's to be expected. Where the shortening doesn't exceed one inch, that's practically a perfect result as regards to shortening. If the alignment is such as we get here, why this alignment is practically perfect in which the callous in the course of time will disappear — that will eventually become absorbed, and the channel or inside of the bone will open up and become harmonious and the external portion will become perfect where there is as nearly a perfect alignment as that."

The ruling of the court, therefore, admitting the answer was harmless.

Plaintiff complains also because the court refused to give this requested instruction:

"You are instructed that the pleadings in this case will go with you to the jury room. They are not evidence but I instruct you that in examining the pleadings to determine the issues you will notice that each of the parties make certain allegations and admissions in their respective pleadings, the complaint, the answer and reply. In this connection I instruct you that the respective parties are bound by the admissions in their pleadings and where one party makes an admission the other party is not required to prove the fact admitted but may rely upon the admission and such admissions, if you find there are admissions in the pleadings, are just as binding upon the party making them as if proven by the opposite party."

It is the duty of the court to instruct the jury what admissions are made by the pleadings. The court did instruct in this language:

"In regard to the facts admitted in the pleadings, neither party is at liberty in the trial to gainsay or contradict. It is the duty of the court in this, as in all cases, to construe the pleadings, and determine what the issues are, * *."

Other instructions were given correctly stating the law regarding the effect of the failure to deny or directly admitting an allegation in the opponent's pleading. It was not error to refuse to give the instruction requested and set out above.

The only issue in this case is whether or not defendant was negligent in treating plaintiff's leg. It was expressly admitted that defendant possessed the requisite skill as physician and surgeon. The issue of negligence was properly submitted to the jury and its verdict is conclusive upon that question.

The judgment is affirmed. AFFIRMED.