Bland v. Southern Pacific Railroad

The Court. —1. The first point made by appellant is that the verdict is contrary to the evidence, for the reason that plaintiff was rightfully expelled from the train of defendant, without unnecessary force, and at a proper place.

Appellant contends the evidence proved that the conductor of the train offered to return, and did return to plaintiff the two dollars paid as and for his fare, before he ejected plaintiff from the car.

The plaintiff testified: “When we got to the platform he put his hand in his pocket and handed me the two dollars, holding me all the time with the other hand. As he gave me the money he shoved me off. The conductor did not return or offer to return the two dollars I had paid him, or any portion of it, until he thus shoved me off.” The fare claimed by the conductor was two dollars and twenty cents. There was at least a substantial conflict in the evidence as to the point whether the two dollars, handed by plaintiff to the conductor, were or were not returned before the latter commenced to remove the plaintiff, or stopped the train. The evidence is very different from such as it appeared in the record when the case was here before. (Bland v. S. P. R. R. Co. 55 Cal. 570.) We cannot say the verdict, so far as it is based on the question of fact above considered, should have been set aside.

2. Appellant contends the court below erred in permitting plaintiff to testify, as an expert, to the consequences of the injuries by him sustained.

We can see no impropriety in permitting the plaintiff to testify that he had lost a leg, with reference to the construction of an artificial leg used by him, and as to the effect upon the stump of a blow or jar. The question was put to the witness: “ Describe to the jury what effect this injury, this shock, produced upon your general system, especially upon your nervous system, your head and spinal column?” This question was.answered at length, but no objection was made to the question, nor did defendant move to strike out the answer. Subsequently the [628]witness was asked what effect “ the accident ” had upon particular organs. To this question the defendant objected as “ irrelevant, immaterial, and incompetent.”

Of course, the mere fact that the plaintiff discovered that the organs in question had wasted away perceptibly six or eight months after “ the accident,” and that from thence the atrophy continued, would not necessarily prove that the decline was a consequence of plaintiff’s expulsion from the car. In passing upon the admission of such evidence, the court must be careful not to be misled by the fallacy post hoc, ergo propter hoc. But unless we can say that no immediately perceptible evil effects could have been produced upon the organs referred to in the question, we cannot say the objections to the question should have been sustained. There are consequences immediately following upon every bodily injury, palpable to the senses, and to which the non-expert is competent to testify.