"Mr. Fitzpatrick: That is objected to. That is the thing I say is improper-exclamations of pain. "The Court: I think exclamations of pain may be given if it was a pure exclamation. "Mr. Fitzpatrick: If there is any element of doubt in your Honor's mind, I would be willing to submit authorities. Exclamations made under those circumstances are highly improper, I believe, under the authorities. "The Court: Very well; put it in at your peril. "Mr. Fitzpatrick: Also on the strength of the doctor's last answer that there were no visible signs -no objective symptoms-I move to strike out the answer as incompetent. The answer just before that which was 'yes,' as to whether manifestations of pain were made. "Mr. Mertz: I am willing to have that word 'yes' stricken out. "The Court: Strike it out. “Mr. Mertz: I understand exclamations of pain are objective symptoms-something you can hearif it was manifest to this doctor, as a medical man, as a pure manifestation of pain. "Mr. Fitzpatrick: Counsel is laboring under an entire misapprehension of the rule with reference to objective symptoms. Exclamations of pain have never, to my knowledge, before been categoried as objective symptoms. "Mr. Mertz: Well, that is true, strictly speaking. I want to know whether there were any exclamations of pain which were apparent to you to be pure exclamations of pain? "A. When Dr. Sanderson manipulated the limb she said it pained her. I saw when Dr. Sanderson manipulated the limb she said it pained her. "Mr. Mertz: That may be stricken out. "Mr. Fitzpatrick: I except to the statement, and I object to the attempt to cure the error. It has been put in. Note an exception. "The Court: Note an exception." Later Dr. Sanderson was called as a witness on behalf of defendant, and in the course of his crossexamination the following occurred: "Q. Did she manifest any tenderness in the examination you made? (Objected to as incompetent.) "The Court: I think you may ask if she flincheddid she flinch under it? "A. She said it pained her. "Mr. Fitzpatrick: Object to that and ask that it be stricken out. "The Court: That may be stricken out. "Q. Did she scream? "A. No, sir. "Q. She did not flinch? "A. She drew her foot away. She remarked at the time it pained her, and drew her foot away. "Mr. Fitzpatrick: I move to strike that out. "The Court: That may be stricken out. "Q. Did she flinch? "Mr. Fitzpatrick: I move to strike out the answer as incompetent and self-serving-that she flinched. I move that it be stricken out-she drew away her foot -as self-serving and incompetent. "The Court: Let it stand. Note an exception. "Q. To your eye-an experienced eye of a medical man-while you made that examination, were there any signs of pain? You would not say there were not, would you? "A. In an examination? "Q. Yes. "A. On deep pressure, I probably elicited pain, but I would expect that. "Q. You would expect that? "A. Yes, sir. "Q. Now, is it possible for a person, situated as this young lady was situated, to fall into an excavation, filled with cold water, on a dark night, and receive a severe nervous shock such as she did receive? "A. Certainly it is possible for anybody. "Q. Whether they are well or sick with goiter? "A. Certainly. "Q. Is it possible to get a permanent nervous injury from the fall? "A. The possibilities are unlimited; certainly it is possible. You can do all kinds of damage with a fall. I would attribute the aggravation of her condition after the accident to the injury. "Q. To the accident? "A. Yes, sir. "Q. There is nothing else in God's world to attribute it to, is there? "A. No, sir. "Mr. Fitzpatrick: Doctor, you said there was some pain on deep pressure, such as you might expect in any case. Why do you say that? "A. On deep pressure on the left ankle over the tendon that runs down; that is, just back of the little toe, it was severe pressure that elicited pain." At the close of all the evidence in the case, the defendant moved for a direction of a verdict in its favor, on the ground that there was no evidence of any of the several acts of negligence charged in the amended declaration. The motion was denied, to which defendant excepted. Whereupon the defendant requested the court to charge the jury to the same effect, which was refused. In the course of its charge to the jury the trial court used the following language: "(If the intersection was not sufficiently lighted by the proper lights and usual lights that are placed at such places, and if you find that the plaintiff was in the exercise of ordinary care-such reasonable care as a party under like circumstances should exercisethen, of course, the plaintiff would be entitled to a verdict at your hands.) "Mr. Fitzpatrick: Now I direct your honor's attention right there to the statement that the crossing was in the line of the sidewalk. I understood the case was to be submitted— "The Court: I am going to say there is no doubt about that fact; there is no question about that. Of course, gentlemen of the jury, I do not mean to say that it was essential to lay planks precisely over the excavation-precisely at that point-(but, of course, if planks were not laid over at the intersection of the southerly sidewalk with Grandy avenue, it should have been so lighted at that point as to indicate to them that there was danger in passing over what would be a continuation of the sidewalk. Of that, of course, there can be no question.) 185 Mich.-18. "(You are also instructed that if this excavation at this place was left open and unguarded on the evening in question without signal lights or other warnings of approach thereto, so that the plaintiff or any other person in coming upon it would not be warned of its existence, then this crossing is not in a condition reasonably safe and fit for travel, and the plaintiff or other pedestrians could not be expected-could not necessarily be expected to be on the lookout for such a situation that is to say, if they had no knowledge of that, of the existence of it, and there was nothing there to indicate, gentlemen of the jury, that there was this excavation, they certainly could not be expected to anticipate that the excavation was there, and I charge you, therefore, if you find from the evidence in this case that such a situation existed at this particular place, and the plaintiff herself, while in the exercise of ordinary care and free from negligence on her part, while passing over at this intersection, fell into the excavation, then it would be your duty to return a verdict for the plaintiff for such damages as will compensate her.) * * * "Now, on the part of the defendant, I think I may say, as I said before, that it is not essential, that I know of, that a crossing should have been built in the line of the southerly sidewalk. (I think it ought to have been sufficient if a sufficient walk was built in the center of the street, as has been testified to, but still in that connection you may bear in mind the testimony of the city inspector that such a walk had been provided at that place, and I say again to you, gentlemen of the jury, that if such walk were not built there would be, of course, more necessity for the putting of lights to indicate the excavation and the maintenance of such light while put there.) * "(If the jury should believe the walk was removed or disturbed by trespassers or others over whom they have no control at any time after Saturday night or before the accident happened, then I charge you that this would not be, under the evidence in this case, negligence for which the defendant would be liable to the plaintiff. That is undoubtedly so, gentlemen of the jury, but the necessity to guard the excavation which exists, of course, would remain, because there would be necessity for watchmen, and the necessity to guard if the sidewalk or crosswalk had been taken up.) "I am asked to charge you that the defendant is not legally chargeable with the results of the storm which is shown to have been of unusual severity, nor was it in duty bound to anticipate the effects of the elements upon its crosswalk; and if you find it had constructed the same with reasonable care, if you believe the storm or the rain which fell with it caused the walks to become unsafe, submerged, or to float away, then the defendant cannot be said to be negligent or liable for injuries which resulted approximately from such condition. I think that is so, gentlemen of the jury (but, as I said before, if the storm was of such severity at that time as to render the force of watchmen upon the job insufficient to light the light and sufficient time had intervened for the city railway to have put on the defendant in this case to put on a larger force of men-I think, gentlemen of the jury, under such circumstances, it may have been requisite for them to have placed the light in such a position, if it was not there before, as to have given a warning of the existence of the excavation, but not otherwise). "Under the evidence in this case, I think you must find defendant had upon the work, at the time of the accident, a reasonably sufficient number of lanterns, properly supplied and properly equipped to provide all necessary warning and signals; and if you believe from this evidence that eight of those lanterns were placed at or near the crossing in question, and were lighted and so placed, gentlemen of the jury, as to afford a warning of the excavation, and if the same were blown out by the wind that prevailed, or put out by the rain at that time, then I charge you that the defendant would not be responsible for the action of the elements, and the fact, if you find it so, that the lights were not going when the plaintiff attempted to cross, would not be negligence for which the defendant would be liable to the plaintiff. I think that is so (except, gentlemen of the jury, as I said before, if sufficient time intervened for the agents of the defendant to have lighted these lights, and they failed to do so, then under the existing circumstances, of course, gentlemen of the jury, it would be the same as if the lights had not existed)." |