Jones v. City of Caldwell

Citations

• 20 Idaho 5
• 116 P. 110
• 1911 Ida. LEXIS 74

Syllabus

<p>Personal Injuries — Two Defenses — Separate Counts — Damages— Defective Sidewalk in City — Hypothetical Question — Opinion of Witness — Instructions—Based on Evidence — Two Physicians — Privileged Information — Waiver of Privilege as to One — Not Waiver as to Other.</p> <p>(Syllabus by the court.)</p> <p>1. Under the provisions of sec. 4187, Bev. Codes, the defendant may set up as many defenses or counterclaims as he may have, but such defenses or counterclaims must be separately stated in separate counts.</p> <p>2. A hypothetical question which contains facts that are proved or claimed to be proved by either party may be put to an expert for the purpose of obtaining his opinion upon such facts, and by so doing sueh expert witness does not usurp the province of the jury, as the jury is not compelled to accept the opinions of sueh expert witness against their will, but will weigh sueh expert opinions as other evidence is weighed by them.</p> <p>3. Seld, that it was error to give that part of instruction No. 13 which reads as follows: “And if you find and believe that the said plaintiff was in bad health, and that her generative organs were infected by gonorrhoea or other loathsome diseases at the time of the injury complained of, notwithstanding that the same might have been aggravated by the fall on the sidewalk, you can only find for the plaintiff to the extent that her troubles were aggravated by said fall,” as there was no evidence whatever in the record to the effect that the plaintiff was in bad health or that her generative organs were infected with gonorrhoea or other loathsome disease.</p> <p>4. It was error for the court to exclude certain evidence and then give certain instructions based on such excluded evidence.</p> <p>5. It was error for the court to refuse to give the following requested instruction: “If you find from the evidence that the plaintiff was caused to fall by a defect in the sidewalk negligently permitted to exist by the defendant, the d