The Wichita daily eagle. [volume] (Wichita, Kan.) 1890-1906, 1896-02-07
WICHITA WINS 1t
CITY APPEALS A SIDEWALK DAM
AGE SUIT WITH GREAT SUCCESS.

AGE SUIT WITH GREAT SUCCESS.
Jane CogsbaI, Who Was Given Five Hum
dred Dollars by a Jury, Loses The Case
Aboye-Case Turned on a Long Hypo-
theticaI Question Put to a Doctor by
Mrs. Cogshau's Attorney-Judge Holds
that Such Questions Must be Based
ON Substantial Facts-New Trial Has
Been Granted.
Wichita won case in the Kansas
court of appeals yesterday. In an opin-
lon by Judge Johnson, all the judges
concurring, it was held that the judg-
ment of the court of common pleas in a
defective sidewalk damage case, was
arroneously given TO Jane Coggshall,
and the case is remanded for a new
trial
On April 29, 1890, Jane Coggshan sued
the city of Wichita for $1,000 damages
which she claimed she received by rea-
son of a bad sidewalk The trial re-
suited in a judgment and verdict for
Jane Coggshan for $500. The case was
appealed by the city Of Wichita, which
now wins. The decision is important
as it relates to the testimony of physi-
clans IL such cases. The court holds
that hypothetical questions should not
be allowed and says: Where a. per-
son has been educated as physician
and surgeon he may give his opinion on
questions pertaining 10 his profession,
and may testify from his personal ex-
animation, and when he does SO his
opinion must be derived from his eX-
amina tfOn and not dependent upon the
statements Of atheis; if the witness does
not speak from his personal eXamina-
ton, his opinion must be based upon
hypoth stical questions propounded TO
him, the hypothesis must be based on
the truth Of all evidence given in the
case and must be so framed that the
witness can answer it intelligently, and
the answer Of the witness must be baS-
ed on the hypothesis stated and not
from a consideration of what might or
might not happen under certain cOndi-
tons; it should be an opinion Of the
witness predicted on the hypothesis
containing the facts.
ION the trial of the case the plaintiff
below called and had sworn and eX-
amiued as a witness in her behalf. Dr.
J. VI. Minick, and after showing his pro-
fession and his competency as an expert
counsel for plaintiff below pTopounded
for him the following hypothetical ques-
tion: Doctor. assuming it 10 be a fact
on or about the 8th day OF December,
1889, the plaintiff, Mrs. Coggshan, while
travelling along the sidewalk on Fourth
avenue in this city, stepped into a hole
in said sidewalk with the right foot as
a result Of which she fell back on said
sidewalk, striking upon the same with
her right hip and elbow, or arm, her
right foot remaining in said hole, and
thereby twisted or injured her back and
spine, from the effects of which she was
confined 10 her bed several months and
was unable to turn herself in bed on ac-
count Of the pains and suffering in her
back for a great portion Of the time;
and during all Of (which time after said
accident and up TO the present time
she has suffered severe pains in her
back and spine, and after having got
out of her bed was compelled to walk a
long time with a crutch and cane, and
now sufferers severe pain in her back
when she dresses. or in doing any heavy
lifting, or while bending over or stOop-
ing down; and that the plaintiffs foot
was caught in the hole in said side
walk so as to twist, fracture or sprain
her right ankle by the fall; and that the
plaintiff was 81 years of age at the time
of said accident; had never suffered or
been troubled with any weakness or
pains in the back or spine prior to re-
ceiving said fall, and that her pain and
suffering in her back and spine are so
severe that plaintiff IS unable to sleep
or rest for the greater portion of the
night, assuming all these propositions to
be true, state your opinion as 10 wheth-
er said injuries 10 the plaintiffs spine
or back are permanent or otherwise"
The court Of appeals says this ques-
ton was highly improper and the OBJ
lection of the other side should have
been sustained against it; that "the
question was not consistent with the
facts proven and it assumed more than
was shown by the evidence, and the OBJ
lection ought TO have been sustained. .
A hypothetical question prOpOunded 10
a scientific witness should contain sub
stantially the facts as shown by the evil
dence on the trial, and should be clear
and definite so that the witness could
give a concise and definite answer
thereto. The question asked in this
case was so indefinite and so contrary
to the facts proven that il could not be
assumed intelligently."
The case was argued and submitted
TO the court of appeals at the recent !
term, Mrs. Cogshall being represented !
by Sankey and Campbell and the city |
by Adams and Adams.