Gallagher v. Market Street Railway Co. of San Francisco

McKee, J. This was an action to recover damages for personal injuries caused by the wrongful expulsion of the plaintiff, by an officer of the defendant, from one of its street cars. On the trial of the questions at issue in the case J. M. Sharlde was called and sworn as a witness ou behalf of the plaintiff, and testified that he was a physician and surgeon by profession, and had been in practice since 1849. Thereupon a book, entitled, “ A System of Surgery, Pathological, Diagnostic, Therapeutic and Operative,” by Samuel D. Gross, published in Philadelphia, was exhibited to the witness, and he was asked: —

“Are you acquainted, sir, with Gross on Surgery?’” In response to which the witness answered:—

“Yes; it is recognized as a standard work on surgery .... [14]and I consider it good authority on the subject on which it treats.”

This was all the testimony given by the witness. No questions were asked him, in connection with the book or otherwise, as to the alleged injuries, which were the subject-matter of the action. But upon the testimony of the witness, counsel for the plaintiff insisted upon his right “ to read from said book, as though the author were a witness then and there present in court, and testifying in the case before the jury”; and in the exercise of that asserted right, he offered to read in evidence extracts from the book upon the following propositions: (1) That wounds to joints are very dangerous, no matter how trivial. (2) That lacerated wounds are more to be dreaded than incised wounds. (3) That the larger the joint the more danger from the wounds. (4) That anchylosis, or stiffening of the knee, may set in from the most trifling wounds of the joints. (5) That a tendon may be impaired or may be injured without the consequence of much inflammation, etc.

To the right of the plaintiff to read the book, or any part of it, as evidence, and to each offer of evidence, as it was made, and to the reading from the book at all, the defendant objected upon the ground that nothing contained in the book was relevant, material, or competent evidence, but the objections were severally overruled, and the plaintiff read the book, at great length, to the jury, as evidence. In People v. Wheeler, 60 Cal. 581, we held it was error to permit the district attorney, against the objection of the defendant, in the trial of a criminal action, to read in his closing argument to the jury as part of his argument, excerpts from “Brown’s Medical Jurisprudence of Insanity,” which tended to sustain the theory of the prosecution upon the question of the insanity of the defendant—one of the questions at issue in the case—without having given the book in evidence or proved that it was a work of standard authority. But in this case such preliminary proof was made, and being made, the book was offered and read in evidence. The question therefore arises, whether a medical book, containing the author’s opinions and views upon the subject of which it treats, is admissible in evidence to prove the nature of injuries sustained by the plaintiff in the action, -and their probable effect?