Filed 3 February, 1967.
1. Automobiles 43, 48 — Passenger in one car may recover of driver of other car involved in collision if his negligence constitutes a proximate cause of collision. In this action by a passenger in an automobile against the driver of the other vehicle involved in the collision, plaintiff's evidence was to the effect that the car in which she was a passenger was travelling west, that defendant's vehicle had a veneer board in its left window where glass should have been, obstructing the driver's view to the left, and that defendant entered the intersection from the north as the automobile in which plaintiff was riding was clearing the intersection, and a collision occurred between the left corner of the cab of defendant's truck and the right fender and headlight of the automobile in which plaintiff was riding. Held: Nonsuit was correctly denied, notwithstanding evidence of negligence on the part of plaintiff's driver in entering the intersection as the traffic control light was changing to red, since defendant is liable to plaintiff if defendant driver was guilty of any negligence constituting, a proximate cause of the accident.
2. Evidence 42 — The opinion of an expert must be based upon facts within the personal knowledge of the expert or upon facts, supported by evidence, stated in a proper hypothetical question.
3. Evidence 51 — Testimony of a medical expert to the effect that plaintiff's lumbo-sacral strain and persistent headaches were the result of the automobile accident in suit is incompetent when the testimony is not based upon facts within the personal knowledge of the witness or upon proper hypothetical questions based upon facts in evidence as to the accident and the injuries received by plaintiff therein.
APPEAL by defendants from McKinnon, J., April 7, 1966 Civil Session of COLUMBUS.
Williamson Walton for plaintiff.
Marshall Williams for defendants.
PARKER, C.J., dissenting.
Personal injury action growing out of a two-vehicle collision at an intersection.
Between 4:00 and 5:00 during the afternoon of October 27, 1962, plaintiff — then 16 years old — was a passenger in the front seat of the Ford automobile being operated by her father, W. K. Todd. The Todd automobile was proceeding in a westerly direction on Highway No. 701, approaching its intersection with Stake Road. This intersection was controlled by an electric traffic signal, which was operated by a trip on Stake Road. Within the intersection a collision occurred between the Todd automobile and a pickup truck owned by defendant Ethel Watts and operated by her son, Earl Keith Watts (Earl) who, with his wife and baby, was then living with his mother.
Plaintiff alleges: Mrs. Watts maintained the truck for the use and convenience of her family, and, at the time of the collision, Earl was operating it as her agent and within the scope of the purpose for which she kept the truck. The collision was caused by the negligence of Earl in that, inter alia, (1) he failed to keep a proper lookout; (2) he failed to yield the right of way to the Ford automobile, which was already in the intersection; and (3) he operated the truck when the glass in its left front window had been replaced by a board, which obscured his vision. In the collision plaintiff sustained permanent injuries.
Answering, defendants denied all material allegations of the complaint and alleged that the collision was proximately caused by the sole negligence of W. K. Todd in that he entered the intersection without keeping a proper lookout at a time when the traffic light facing him was red.
Plaintiff's evidence tended to show: Todd approached the intersection at 20 MPH. When he was 150 feet away, the light facing him was green, but he was expecting it to change. Thirty yards away, he observed the Watts' truck waiting in Stake Road on the north side of the intersection. Its engine was turned to the west toward Tabor City. Todd noticed a piece of veneer board in its left window, where a glass should have been. About the time Todd went under the light, it changed. When he was 10-12 feet from the truck, it pulled into the intersection. The right fender and headlight of the Todd vehicle struck the left corner of the cab of the truck just under the gasoline spout. Plaintiff was thrown forward; her head broke the windshield, and her knees hit the dashboard. She was given first aid by a local physician, who bandaged her knees; she was not hospitalized. Thereafter, she began to have continuous headaches and backaches. About five months after the accident, on March 23, 1963, plaintiff consulted Dr. J. Burr Piggott, Jr., an orthopedic surgeon of Florence, South Carolina. He found the "suggestion of a spinal bifida at S-1 posterior neural arch" and some straightening of the lumbar spine and a mild reversal of same, conditions which, he thought, were congenital and capable of producing discomfort. Trauma, however, was usually required to make them painful. Plaintiff's low back motion was limited in flexion and in extension, but Dr. Piggott found no true spasm. He prescribed a hard bed, girdle support, use of a heating pad, deep heat treatment by her physician, and limitation of stooping, bending, and heavy lifting. He saw plaintiff once more in October 1964, when he found her condition essentially unchanged. In Dr. Piggott's opinion, plaintiff would have some "minimal permanent disability".
In the spring of 1963, plaintiff graduated from high school. Because she "didn't feel well at all," she did not take a job until December 1963. From then until April 1964, she worked as a receptionist. From April until September 1964, she worked as a sewing machine operator, although she lost 25-30 days because of headaches and backaches. In September 1964, she gave up that job to get married. Since November 1964, she has worked for Mullins Textile.
Defendants' evidence tended to show: Earl stopped on the north side of the intersection in obedience to the red light then facing him. While thus stopped, he observed the Todd vehicle slowing down as it approached the intersection. When the light for Stake Road changed to green, Earl pulled into the intersection and made a right turn toward Tabor City. When his wife "hollered," Earl whirled around to his left to see what was happening and the right front of the automobile hit the left side of the cab of defendants' truck. The left window of the cab had been broken out and replaced with a piece of veneer board. The driver's only view to the left was "a little vent window ( 8-10 inches wide) which was in the front of the door." Earl did not own a motor vehicle.
The jury answered the issues of negligence, agency, and damages in favor of plaintiff. From judgment on the verdict, defendants appealed, assigning errors.
Plaintiff's evidence was ample to overcome both defendants' motions for nonsuit. 3 Strong, N.C. Index, Negligence 8 (1960). There must, however, be a new trial for errors in the admission of evidence. The court overruled defendants' objections to the following questions, which plaintiff's counsel asked Dr. Piggott, and denied defendants' motions to strike the answers elicited:
"Q. Doctor, will you state what diagnosis you made as a result of your examination on March 23rd, 1963?
"A. Yes, sir; my diagnosis reads, from my records: Auto accident with original contusion injuries of forehead and scalp and skull, without fractures, plus abrasion injuries of the knee that have healed, plus wrenching and contusion injuries of the low back with persistent chronic low back pain.
"Q. Doctor, as a result of talking to Mrs. Batten on March 23rd, 1963, did you form an opinion, or do you have an impression as to whether she will have any type permanent disability as a result of her injuries she sustained in the accident on October 26th (sic), 1962
"A. Yes, sir.
"Q. What is that opinion?
"A. I felt patient would have some minimal permanent disability — minimal residual permanent disability as regards her low back wrenching injuries and her persistent headaches.
I went on to state I made no attempt to examine the patient's eyes, or evaluate patient's ocular complaints.
". . . My impression was she had some continuing lumbo-sacral strain and persistent headaches as a result of her auto accident.
"Q. Doctor, did you find any scars on her knees which she received in the accident, or any scars on her legs?
"A. There were no major scars. She had abrasion injuries and I have no record of any major scarring of her knees or legs.
* * *
"Q. The congenital finding that you made on Mrs. Batten's back, could it have been aggravated by an injury or blow she received in this automobile accident?
"A. Yes, sir."
Since it is the jury's province to find the facts, the data upon which an expert witness bases his opinion must be presented to the jury in accordance with established rules of evidence. Stansbury, N.C. Evidence 136 (2d Ed. 1963). "It is well settled in the law of evidence that a physician or surgeon may express his opinion as to the cause of the physical condition of a person if his opinion is based either upon facts within his personal knowledge, or upon an assumed state of facts supported by evidence and recited in a hypothetical question." Spivey v. Newman, 232 N.C. 281, 284, 59 S.E.2d 844, 847. A witness is not permitted to base an opinion upon facts of which he has no knowledge. Robbins v. Trading Post, Inc., 251 N.C. 663, 111 S.E.2d 884. This, however, is what Dr. Piggott purported to do. He had no personal knowledge that plaintiff was involved in an automobile accident on October 27, 1962, or, if she was, that she sustained any injuries in the accident. Yet, he stated to the jury as a fact that, in the accident in suit, plaintiff had sustained, inter alia, "wrenching and contusion injuries of the low back with persistent chronic low back pain"; that she had "continuing lumbo sacral strain and persistent headaches as a result of her automobile accident"; and that her congenital spinal defects could "have been aggravated by an injury or blow she received in this automobile accident." Whether plaintiff had persistent headaches and continuous backaches and, if so, whether the collision caused them, were crucial questions in the case.
The doctor could not assume the cause or source of the symptoms which plaintiff reported to him and which he found five months after the accident in suit. His opinion as to the possible cause of these symptoms and their probable permanency, should have been elicited as the response to a properly phrased hypothetical question which included all material facts necessary to enable him to form a satisfactory opinion. Stansbury, N.C. Evidence 137 (2d Ed. 1963).