Gillman v. Media, Middletown, Aston & Chester Electric Railway Co. , 224 Pa. 267 ( 1909 )

Opinion by

Mr. Justice Mestrezat,

Notwithstanding the thirteen assignments filed in this case we are not convinced that the learned court below committed error on the trial of the cause.

The assignments alleging error in the admission of expert testimony are without merit. Where the facts are admitted or proved by evidence which is not conflicting, an expert may be asked his opinion upon such facts. As, however, it is the province of the jury to determine the facts, an expert cannot be asked his opinion upon the whole evidence in the case where that is conflicting. But a party may state specifically the particular facts he believes to be shown by evidence or such facts as the jury would be warranted in finding from the evidence, and ask the opinion of the expert on such facts, assuming them to be true. The other side may likewise put a hypothetical question based upon such facts as he alleges are shown by the evidence or the jury would be justified in finding from the evidence. Neither side is required in putting the hypothetical question to include therein any other facts than those which he may reasonably deem established by the evidence. The purpose of a hypothetical question is to elicit from the expert an opinion upon facts either admitted or established by the evidence, and the fapts upon which the question is predicated should be clearly stated so that the jury may know upon what the opinion is based.

The objection to the question put to the expert witness was “that it does not state all of the facts of the case.” It, however, did state all of the facts disclosed by the evidence in the case from the standpoint of the party interrogating the witness, and that was all that is required: Coyle v. Com., 104 Pa. 117; Davidson v. State, 135 Ind. 254; Cowley v. People, 83 N. Y. 464; Stearns v. Field, 90 N. Y. 640. In the Coyle case, Mr. Justice Clark, speaking for the court, said (p. 133): “Each side had the right to an opinion from the witness upon any hypothesis reasonably consistent with the evidence, and if meagerly presented in the examination on one side, it may be fully presented on the other; the whole examination being within the control of the court, whose duty it is to see that it is fairly and reasonably conducted.” Coffey, J., delivering the opinion in the Davidson case, says (p.. 261): “In the examination of expert witnesses, counsel may embrace in his hypothetical question such facts as he may deem established by the evidence, and if opposing counsel does not think all the facts established are included in such question he may include them in questions propounded on cross-examination. Any other course would result in endless wrangles over the question as to what facts were, and what were not, established.” In Stearns v. Field it is held that if “testimony of an expert is proper, counsel may ask a hypothetical question, assuming the existence of any state of facts which the evidence fairly tends to justify. An error in the assumption does not make the interrogatory objectionable, if it is within the possible or probable range of the evidence.”

It may be suggested that the admission of the testimony of Dr. Paxson which is assigned for error, did the defendant no harm if it was erroneously admitted. His reply was not a direct answer to the question. The hypothetical question put to the doctor invited his opinion whether the injury on the trolley car was the cause of the plaintiff’s “ present poor physical health.” In his answer he says that he examined the woman, “and what I found at that time I believe to be the cause of all her trouble then.” He does not say what he found and, hence, he does not testify as to the cause of her present condition of health. His answer to the hypothetical question does not disclose that it is based upon the injury which she alleges she received on the trolley car.

Dr. Potts, whose testimoney is also objected to, had made an examination of the plaintiff and-testified as to the result of the examination. He also was present at the trial and heard all the testimony in the case except a part of the plaintiff’s testimony. The trial judge interrogated the witness and stated to him the facts disclosed by the evidence. A hypothetical question was then put to Dr. Potts as to the probable time in which the plaintiff would recover with proper treatment. The defendant’s counsel interposed the objection that, “The doctor does not know the entire history of the case.” The doctor made a personal examination of the plaintiff a short time previous to the trial and diagnosed her ailment as a combination of neurasthenia and hysteria and he simply gave his opinion as to the probable time it would require her to recover from that ailment. He heard the testimony as to the condition of the plaintiff’s health subsequent to the accident. We do not think the second assignment of error should be sustained.

The third assignment must be overruled for the reasons given for dismissing the first assignment of error.

The refusal of the court to continue the cause under the circumstances was not an abuse of discretion amounting to reversible error. The testimony on both sides of the case, except that of Dr. Crothers, was concluded. It did not appear by proof that the doctor had been subpoenaed nor was any offer made to show what he would testify to. In addition to this his testimony would have been simply cumulative.

The parts of the charge assigned for error are not justly open to criticism. Especially is this true when we consider the affirmation by the court of the defendant’s thirteenth, fourteenth, and fifteenth points for charge. The court’s answers to the fourth and eleventh points are likewise unobjectionable, and are sufficiently full .and explicit to vindicate themselves.

The assignments are overruled, and the judgment is affirmed.