hypothetical second fracture.32 Expert testimony as to future consequences which are reasonably expected to follow an injury, however, may be given for the purpose of enhancing the damages to be awarded.33 And a physician may testify as to what results will fol low with reasonable certainty, from conditions observed by him.34 Nor does the uncertainty of a medical opinion as to probable future results, founded upon present conditions, prevent it from being competent;35 and a physician may testify as to the probable length of time that a diseased or injured person will live, though stating that he can only give the probability from the history of other similar cases.36 Nor is the opinion of a physician that one had been restored to a former condition speculative;37 and the fact that a person's condition was deemed incurable does not render the physician's opinion that it was caused by an injury, incompetent as speculative. 38

548. Subject-matter of medical expert evidence; general rules.-Unless the opinions of physicians and surgeons can be regarded as involving some matter of medical science or technical skill, they are not admissible as expert evidence;39 and a physician or surgeon tes

Lincoln v. Saratoga & 8. R. Co. 23 Wend. 425.

Strohm v. New York, L. E. & W. R. Co. 96 N. Y. 305; Blate v. Third Ave. R. Co. 16 App. Div. 287, 44 N. Y. Supp. 615.

"Forde v. Nichols, 36 N. Y. S. R. 729, 12 N. Y. Supp. 922. And see Goodrich v. People, 3 Park. Crim. Rep. 622.

And a physician is competent to give an opinion as to the reasonable probability of an injured person's ultimate recovery, as distinguished from reasonable certainty of recovery. Block v. Milwaukee Street R. Co. 89 Wis. 371, 27 L. R. A. 365, 46 Am. St. Rep. 849, 61 N. W. 1101.

But the opinion of a medical witness as to the probable future result of an injury is incompetent, where he declines to say that such a result will ensue with reasonable certainty. De Soucey v. Manhattan R. Co. 39 N. Y. S. R. 79, 15 N. Y. Supp. 108.

that a person exhibited symptoms which were equally characteristic of two different internal conditions, either of which conditions might have been occasioned by the accident for which suit was brought, was not inadmissible simply because the witness was unable to say with certainty which of the internal conditions actually existed. Quinn v. O'Keeffe, 9 App. Div. 68, 41 N. Y. Supp. 116.

Alberti v. New York, L. E. & W. R. Co. 118 N. Y. 77, 6 L. R. A. 765, 23 N. E. 35.

Clegg v. Metropolitan Street R. Co. 1 App. Div. 207, 39 N. Y. Supp. 130. 38 Jones v. Utica & B. River Co. 40 Hun, 349.

Dillard v. State, 58 Miss. 368; Cook v. State, 24 N. J. L. 843; Allen v. St. Louis Transit Co. (Mo.) 81 S. W. 1142; People v. Wright, 136 N. Y. 625, 32 N. E. 629.

But a question asked a physician, whether in his experience as a physician, or in his reading, he ever met with a case where similar conditions to those in the case in hand existed, is not subject to objection as not calling for medical testimony. State v. White, 76 Mo.

Mitchell v. Tacoma R. & Motor Co. 13 Wash. 560, 43 Pac. 528; Matteson v. New York C. R. Co. 62 Barb. 364; Macer v. Third Ave. R. Co. 15 Jones & S. 461; Wallace v. Vacuum Oil Co. 128 N. Y. 579, 27 N. E. 956; Crites v. New Richmond, 98 Wis. 55, 73 N. W. 322. 96. And expert evidence of a physician

40

tifying as such cannot give his opinion as such on a question which the jury is capable of answering without the aid of professional skill and experience, 10 such as that of proper compensation for a personal injury,11 or that of the competency of another expert to express a correct opinion;42 and a question as to what another physician would or could do under stated circumstances which are only imag inary is incompetent as speculative.43

The opinion of a witness possessing medical skill, however, is admissible whenever the subject-matter of the inquiry is such that inexperienced persons are likely to prove incapable of forming a correct judgment upon it without such assistance, or when it so far partakes of the nature of a science as to require previous study or habit." The question as to what is a matter of science concerning which an expert may testify, and what a matter of common experience, is always one for the court.*

45

47

549. Apparent condition.-Whether a person is sick or diseased, 46 or apparently in sound health, or apparently better or worse,48 is not a question of medical skill, but one which may be determined and characterized by a person of ordinary experience and observation; and so is the question whether a limb is broken.49 The manifesta

"Brown v. State, 55 Ark. 593, 18 S. W. 1051; Kennedy v. People, 39 N. Y. 245.

"Muldraugh's Hill, C. & C. Turnp. Co. v. Maupin, 79 Ky. 101.

Tullis v. Kidd, 12 Ala. 648; Birmingham R. & Electric Co. v. Ellard, 135 Ala. 433, 33 So. 276.

Jennings v. Supreme Council, L. A. Ben. Asso. 81 App. Div. 76, 81 N. Y. Supp. 90; State v. Pike, 65 Me. 111; Root v. Boston Elev. R. Co. 183 Mass. 418, 67 N. E. 365.

And the question whether a physician in refusing to consult with another physician had honorably and faithfully discharged his duty to the medical profession is one for the jury, in an action involving it, and not for an expert. Ramadge v. Ryan, 9 Bing. 333, 2 Moore & S. 421, 2 L. J. C. P. N. S. 7.

And an interrogatory addressed to a medical witness, as to whether it is good medical practice to say you open a thumb to cut off a nerve because it is already partly cut off, is improper; the question involving no medical act or practice whatever, but only a reason assigned for an act. Twombly v. Leach, 11 Cush. 397.

"Cook v. State, 24 N. J. L. 843; Cole

v. Fall Brook Coal Co. 87 Hun, 584, 34 N. Y. Supp. 572.

Dillard v. State, 58 Miss. 368. Dominick v. Randolph, 124 Ala. 557, 27 So. 481.

And whether or not a person made the same complaint the day previous that she had made years before is a matter of fact to which anyone can tes tify without reference to his being an expert, and not a conclusion of the witness. Birmingham R. & Electric Co. v. Ellard, 135 Ala. 433, 33 So. 276.

And testimony that an injured person was confined to his bed, and unable to walk without aid, is a matter of fact relating to the physical condition of such person, and not a matter of opinion to be testified to by an expert, or with reference to which the facts upon which it is based must be disclosed. Missouri, K. & T. R. Co. v. Wright, 19 Tex. Civ. App. 47, 47 S. W. 56.

"Baldi v. Metropolitan Ins. Co. 18 Pa. Super. Ct. 599.

King v. Second Ave. R. Co. 75 Hun, 17, 26 N. Y. Supp. 973.

"Montgomery v. Scott, 34 Wis. 338.

But while the question as to the ef fect of a fracture and amputation of a limb upon the injured person's capacity

tions of pain and suffering are a matter of common knowledge.50 And testimony of a medical expert that an injured person was a physical and mental wreck, and could obtain absolutely no enjoyment of life, is incompetent as a mere general conclusion.51 Nor are physicians experts upon the question of the soundness of a slave.52 But physicians are experts as to diseases, whether in slaves or in others.53 And the question as to what certain symptoms indicate is a matter of medical skill, and a particular subject for medical testimony;54 and a physician may be asked to describe the symptoms which ordinarily and necessarily accompany a specified trouble or injury.55 And while it may be common knowledge that one coming in personal contact with another infected with a contagious disease, or occupying the same room with him, is exposed to it, whether or not upon a given state of facts a person will be deemed to have been exposed is a medical question for an expert.56 And the contagious character of the disease, and the length of time its poison retains its vitality, are also medical

to perform manual labor would not or dinarily be one for a medical expert, if an artificial limb is procured, the conditions resulting from the use of such limb will be, to a certain extent at least, more clearly within the knowledge of, and be better understood by, a physician than by a person engaged in the ordinary affairs of life; and in such case a medical opinion is warranted. Southern P. Co. v. Hall, 41 C. C. A. 50, 100 Fed. 760.

Chicago, B. & Q. R. Co. v. Martin, 112 III. 16, 1 N. E. 111; Hall v. Austin, 73 Minn. 134, 75 N. W. 1120.

But the opinion of a medical man as to whether a person who had suffered an amputation of a hand and arm experienced the pain of an imaginary hand and arm is within the rule of admissibility, and not subject to objection that such pain is imaginary, and a mere delusion, and not the direct or natural result of the injury. Hickenbottom v. Delaware, L. & W. R. Co. 122 N. Y. 91, 25 N. E. 279.

Sterling v. Detroit (Mich.) 10 Det. L. N. 399, 95 N. W. 986.

Hook v. Stovall, 26 Ga. 704. But see Tatum v. Mohr, 21 Ark. 349.

Hook v. Stovall, 26 Ga. 704; Tatum v. Mohr, 21 Ark. 349.

And a physician is competent to testify as to his opinion, in an action for damages for breach of a warranty of soundness of a slave, that in future the value of the services of the slave would VOL. III. MED. JUR.--37.

be less than the value of medical attention she would require. Roberts v. Fleming, 31 Ala. 683.

"Quinn v. O'Keefe, 9 App. Div. 68, 41 N. Y. Supp. 116.

Cole v. Fall Brook Coal Co. 87 Hun, 584, 34 N. Y. Supp. 572.

A physician is competent to give an opinion as to whether the presence of flesh on a woman was an indication of a named disease or trouble. Benjamin v. Holyoke Street R. Co. 160 Mass. 3, 39 Am. St. Rep. 446, 35 N. E. 95.

And a question in a prosecution for bastardy, on the subject of a premature birth, asking a physician for an opinion as to the maturity or immaturity of a child, based upon the want of eyebrows, hair, and toe nails at its birth, is a proper one to address to a medical expert. Daegling v. State, 56 Wis. 586, 14 N. W. 593.

But testimony of a physician based on the treatment of an injured person, as to symptoms due entirely to her injuries, is incompetent as usurping the functions of the jury, in requiring him to decide that the symptoms arose from the injuries. Atkins v. Manhattan R. Co. 57 Hun, 102, 10 N. Y. Supp. 432.

Smith v. Emery, 11 App. Div. 10, 42 N. Y. Supp. 258.

Whether in a particular case conditions would exist for the communication of contagion to a person, rendering him exposed to the disease, may be a question of medical science and skill. Ibid.

questions presenting subjects for professional opinion;57 and so are questions as to the tendency of certain conditions to produce sickness,58 or to make injury more probable.59 Nor is a physician incompetent to give an opinion as to vital spots and places where it is dangerous to receive an injury or blow,60 or as to the power of resistance of a skull, and as to the force requisite to break it.1

550. Cause of existing condition.-The nature and extent of injuries, and the present condition of a person ill or injured, are questions peculiarly within the province of medical skill and science, and always proper to be addressed to an expert.62 And a physician may give his opinion based on such condition and the nature of the injuries, on the question as to the causes from which they arose, and

as to whether they were produced by violence or disease,64 and as to whether such a condition could have existed if described circumstances had taken place, such opinions not being objectionable as speculative. And such opinions may be founded upon personal examination and observation;67 or they may be founded upon a statement of the nature of the injury, and subsequent symptoms, and present physical condition, as testified to by others;68 or upon an hypothe