Per Curiam.
This appeal arises from a verdict by a jury and judgment thereon in favor of the defendant, appellee herein, in a wrongful death action. Plaintiff’s decedent was driving a large truck loaded with eggs and was proceeding south on a state route. The defendant was driving a state highway truck and was proceeding north. Immediately after the impact the egg truek caught on fire and plaintiff’s decedent and his helper, being the only two persons in the truck, perished. The
defendant claims he has no knowledge of the events immediately preceding the collision. There were no eye witnesses.
One of the appellant’s (plaintiff’s) assignment of errors is that the trial court erred in permitting Dr. J. W. Crispin to give an opinion not based upon medical probability.
The defendant called his family physician, Dr. J. W. Crispin, who testified that he had practiced since 1947 and had specialized in cardiac or cardio vascular diseases “which the layman ordinarily calls heart trouble”; that the defendant became a patient of his in 1958 when he treated him for angina pectoris “which is a common heart pain”; that at that time his electrocardiogram showed a “coronary artery disease, hardening of the arteries, hardening of the coronary arteries”; that between 1958 and 1961 he was taking medicine off and on, “tablets which was a dilator of the coronary arteries”; that in 1961 he had a back injury and a re-occurrence of angina and pain which kept him off work for a week; that there was no reason to restrict his automobile driving; that he examined him at the hospital after his injuries of February 12, 1962; that he had a concussion and broken ribs; that the electrocardiogram taken that day did not show a heart attack, that it did show an extra beat of the heart about every sixth beat, but this was not in his opinion a result of the accident since no damage occurred to the ribs in the heart area; that in the hospital the defendant told him he had had no pain in the chest prior to the accident but he remembered no details; and that in May, three months after the accident, a coronary thrombosis disabled him for some time.
The doctor was then asked:
“Q. Considering, doctor, his past medical history, the heart disease which he had since 1958, about which you testified; considering your knowledge of the injuries he received in the accident on February 12, 1962; considering the results of the cardiogram that you took on February 12, 1962; considering the treatment after February 12, 1962; and the fact that he had a heart attack some three months later, and your knowledge of that condition; do you have an opinion as to whether or not it was probable that Mr. Pond may have lost consciousness immediately prior to the accident?”
The witness started his answer with the following:
“A Well, let’s say that it’s within the realm of probability to take a man that has driven all his life and is probably a good driver, pretty stead — ”
An objection to this was sustained and the witness continued :
“A (Continued) In other words, you better get on this right — realm of, within the probability that something must have interfered with his realm of consciousness prior to the accident, or he wouldn’t have lost control of the car.”
An objection to this part of the answer was sustained and the jury instructed to disregard the answer.
The following question was then asked and answered as follows:
“Q Now, will you state what in your opinion may have happened, or did happen?
“A Well — it’s in my opinion, I feel, I don’t know the facts about the driving, I don’t know anything about that. All I know is that I feel that if there was any evidence of loss of consciousness here before, loss of — you don’t — I don’t know how you say it — anyway, I feel like he didn’t know what was happening just prior to the accident. Can I say that?”
An objection to this answer was sustained.
The following question was then asked:
“Q Very well. Will you state, in your opinion, whether he probably did or did not lose consciousness immediately before the accident?”
An objection to this question was overruled and the witness answered as follows:
“A
Well, I don’t know much about that, but in my opinion, Denver was driving down the road and he has hardening of the arteries of the brain, which all people do at this age—
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“A
He has hardening of the arteries of the brain. In other words, anybody at this age has quite a bit of hardening of the arteries of the brain.
( (
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“A I know — I had a notion to say — but it really, in other words, what I am trying to get at, any weakness of the heart
action or anything can cause a lack of blood to the brain, which gives a loss of consciousness; they actually faint, and it can happen to anybody, and it is more apt to happen at this age because the arteries are already hardened, there is not enough blood to the brain anyway, and any little bit of incult can rob the brain of its blood supply and the patient has a black-out spell. We have all had them, and you have a black-out spell and you can fall over, or you can just shake your head and get better, and it’s quite prominent in people of this age to have these spells. They are especially on prolonged standing, the blood leaves the brain, and they will be waiting for the mail, and they fall over because of standing so long. Then from the hardening of the arteries of the brain, the heart action is a little weak, doesn’t push the blood into the brain; your pulse is a little weak, you don’t get enough blood into the brain, and they have black-out spells; will actually pass out. This happens quite often not only to older persons, but younger persons. Now, back to this, I can’t say this happened to this man, but yes, it is within the realm of probability that he had a temporary lack of blood supply to the brain, most likely due to a weakened pumping or weakened heart, but again, it is just within the realm of probability. It is one of those things.”
A motion to strike the answer was overruled.
The following are pertinent excerpts from the cross-examination involving the question before us:
“Q Now, you have in your answer indulged in a good bit of speculation, haven’t you, as to conditions out there and so forth? A Probabilities; not—
“Q Probabilities or possibilities? A Both.
“Q What are they, probabilities or possibilities? A I would think at his age it would be probabilities.
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“Q Well, isn’t it more probable that he did not black out at that point than it is probable that he did? A No, I think it is more probable that he did black out previous to this.
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Per Curiam.
This appeal arises from a verdict by a jury and judgment thereon in favor of the defendant, appellee herein, in a wrongful death action. Plaintiff’s decedent was driving a large truck loaded with eggs and was proceeding south on a state route. The defendant was driving a state highway truck and was proceeding north. Immediately after the impact the egg truek caught on fire and plaintiff’s decedent and his helper, being the only two persons in the truck, perished. The
defendant claims he has no knowledge of the events immediately preceding the collision. There were no eye witnesses.
One of the appellant’s (plaintiff’s) assignment of errors is that the trial court erred in permitting Dr. J. W. Crispin to give an opinion not based upon medical probability.
The defendant called his family physician, Dr. J. W. Crispin, who testified that he had practiced since 1947 and had specialized in cardiac or cardio vascular diseases “which the layman ordinarily calls heart trouble”; that the defendant became a patient of his in 1958 when he treated him for angina pectoris “which is a common heart pain”; that at that time his electrocardiogram showed a “coronary artery disease, hardening of the arteries, hardening of the coronary arteries”; that between 1958 and 1961 he was taking medicine off and on, “tablets which was a dilator of the coronary arteries”; that in 1961 he had a back injury and a re-occurrence of angina and pain which kept him off work for a week; that there was no reason to restrict his automobile driving; that he examined him at the hospital after his injuries of February 12, 1962; that he had a concussion and broken ribs; that the electrocardiogram taken that day did not show a heart attack, that it did show an extra beat of the heart about every sixth beat, but this was not in his opinion a result of the accident since no damage occurred to the ribs in the heart area; that in the hospital the defendant told him he had had no pain in the chest prior to the accident but he remembered no details; and that in May, three months after the accident, a coronary thrombosis disabled him for some time.
The doctor was then asked:
“Q. Considering, doctor, his past medical history, the heart disease which he had since 1958, about which you testified; considering your knowledge of the injuries he received in the accident on February 12, 1962; considering the results of the cardiogram that you took on February 12, 1962; considering the treatment after February 12, 1962; and the fact that he had a heart attack some three months later, and your knowledge of that condition; do you have an opinion as to whether or not it was probable that Mr. Pond may have lost consciousness immediately prior to the accident?”
The witness started his answer with the following:
“A Well, let’s say that it’s within the realm of probability to take a man that has driven all his life and is probably a good driver, pretty stead — ”
An objection to this was sustained and the witness continued :
“A (Continued) In other words, you better get on this right — realm of, within the probability that something must have interfered with his realm of consciousness prior to the accident, or he wouldn’t have lost control of the car.”
An objection to this part of the answer was sustained and the jury instructed to disregard the answer.
The following question was then asked and answered as follows:
“Q Now, will you state what in your opinion may have happened, or did happen?
“A Well — it’s in my opinion, I feel, I don’t know the facts about the driving, I don’t know anything about that. All I know is that I feel that if there was any evidence of loss of consciousness here before, loss of — you don’t — I don’t know how you say it — anyway, I feel like he didn’t know what was happening just prior to the accident. Can I say that?”
An objection to this answer was sustained.
The following question was then asked:
“Q Very well. Will you state, in your opinion, whether he probably did or did not lose consciousness immediately before the accident?”
An objection to this question was overruled and the witness answered as follows:
“A
Well, I don’t know much about that, but in my opinion, Denver was driving down the road and he has hardening of the arteries of the brain, which all people do at this age—
11
* * *
“A
He has hardening of the arteries of the brain. In other words, anybody at this age has quite a bit of hardening of the arteries of the brain.
( (
* # #
“A I know — I had a notion to say — but it really, in other words, what I am trying to get at, any weakness of the heart
action or anything can cause a lack of blood to the brain, which gives a loss of consciousness; they actually faint, and it can happen to anybody, and it is more apt to happen at this age because the arteries are already hardened, there is not enough blood to the brain anyway, and any little bit of incult can rob the brain of its blood supply and the patient has a black-out spell. We have all had them, and you have a black-out spell and you can fall over, or you can just shake your head and get better, and it’s quite prominent in people of this age to have these spells. They are especially on prolonged standing, the blood leaves the brain, and they will be waiting for the mail, and they fall over because of standing so long. Then from the hardening of the arteries of the brain, the heart action is a little weak, doesn’t push the blood into the brain; your pulse is a little weak, you don’t get enough blood into the brain, and they have black-out spells; will actually pass out. This happens quite often not only to older persons, but younger persons. Now, back to this, I can’t say this happened to this man, but yes, it is within the realm of probability that he had a temporary lack of blood supply to the brain, most likely due to a weakened pumping or weakened heart, but again, it is just within the realm of probability. It is one of those things.”
A motion to strike the answer was overruled.
The following are pertinent excerpts from the cross-examination involving the question before us:
“Q Now, you have in your answer indulged in a good bit of speculation, haven’t you, as to conditions out there and so forth? A Probabilities; not—
“Q Probabilities or possibilities? A Both.
“Q What are they, probabilities or possibilities? A I would think at his age it would be probabilities.
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“Q Well, isn’t it more probable that he did not black out at that point than it is probable that he did? A No, I think it is more probable that he did black out previous to this.
Í i
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“Q Now, in as much this particular individual never had one before and never had one since, why would you say it is more probable that he did have one at that time than he
didn’t? A Well, I am trying to explain the seemingly loss of something just prior to the accident, loss of mental powers previous to the accident.
“Q And you are basing that on the fact that he did have an accident and didn’t have control of his vehicle, aren’t you? A I am basing it on the fact that something must have happened to make him have the accident. In other words, you don’t just—
“Q Yes, something must have happened. Now do you say that in accidents that happen, and there are a number of them every day in the state of Ohio — A Yes.
“Q That in a majority of those cases something happens . to a man physically before he has the accident, he has a black out? A More often than we realize, I am sure.
“Q Well, is it more often than not? A I think it is.
“Q You think it is? A Yes sir.
“Q Upon what do you base that? A How else can you explain an accident unless it is a temporary loss of mental faculty? You are not going to run into a fellow if you don’t lose something you have that quick.
C C
if 4s
“Q You are rationalizing, are you not, doctor? A No, facts.
“Q No, you are rationalizing. A No, facts.
“Q With respect to accidents in general? A Yes; not rationalizing.
“Q That is a part of your answer? A Theorizing, yes.
“Q Theorizing? A Yes.”
At this point counsel for plaintiff moved that the answer be stricken, meaning the answer to the hypothetical question heretofore quoted and given upon direct examination. The following then occurred as shown by the record:
“The Court: The court thinks the witness is confused on your last question, Mr. Spidel, when you said this, I don’t think the witness understood that you meant all of his testimony, I think you indicated you meant both on direct examination and cross.
“Mr. Spidel: If the court please, he attributes his conclusions in the first instance that something did happen, and it wouldn’t have happened if the man didn’t have something
wrong with his mind or if he didn’t black out. He theorized on that. He said that was a part of the basis of his answer.
“The Court: Did you mean, Doctor Crispin, — if that is proper — did you mean by your answer to Mr. Spidel’s question that you were theorizing when you answered Mr. Boiler?
‘ ‘ The Witness: I am theorizing on people of this age group, let’s put it that way. I consider our older age groups are most likely due to this type of thing, cerebral asthenia, lack of blood supply to the brain in older age. I am not talking about the young ones so much.”
The court did not rule immediately on the motion to strike, but after some further cross-examination, not pertinent here, the court overruled the motion and stated that the jury would be instructed later on the use of the hypothetical question.
The last question put to the doctor before his long answer was “whether he probably did or did not lose consciousness immediately before the accident” and his conclusion was that it was “within the realm of probability that he had a temporary lack of blood supply to the brain. ’ ’ While this answer may not be entirely responsive to the question the doctor did say as part of his answer that “lack of blood to the brain * * * gives loss of consciousness.”
However the refusal of the court to strike the answer from the record and instruct the jury to disregard it was prejudicial error. On cross-examination the doctor stated he was basing his answer “on the fact that something must have happened to make him have an accident” and “How else can you explain an accident unless it is a temporary loss of mental faculty.”
The expert medical testimony here was offered by the defendant to enable the jury to conclude that there was no negligence on the part of the defendant due to his being unconscious immediately prior to the collision. However, it is apparent from the testimony of the medical expert, both on direct and cross-examination, that he was arriving at the conclusion that the defendant was probably unconscious because the collision occurred. He made the collision the basis of his belief of unconsciousness, rather than the unconsciousness the explanation of the collision. This type of reverse reasoning made his opinion testimony incompetent.
His answer was based upon his own conclusion that the
defendant was not negligent, and was further partly based on his opinion and statements, made before his answer, to which objections had been sustained and which the jury had been instructed to disregard.
Such an opinion is worthless so far as the jury question involved here is concerned, and to permit the witness to speculate in this manner before the jury is prejudicial error.
A majority of this court find all other assignments of error, except refusal to grant a new trial, to be not well taken. The judgment is reversed and the cause remanded for new trial.
Judgment reversed.
Younger, P. J., Guernsey and Middleton, JJ., concur.