1 Reported in 268 N.W. 852. January 13, 1934, plaintiff's intestate had his shoulder sprained and was otherwise bruised in a collision between the car in which he was riding and that of defendant. On this account he abstained from work for about one week but complained of soreness and fatigue during the remainder of his life. Five weeks and three days (February 20, 1934) after the accident, while on his way to work in the morning, he was exposed for about an hour to severe cold while the car in which he was riding was being repaired. Five days later he died of lobar pneumonia.
In our opinion the evidence of the medical experts wholly fails to connect the injury received in the accident with the death of *Page 56 plaintiff's intestate. Dr. Clark, the attending physician, who first treated the deceased five days after the accident and who was called in when the deceased became ill of pneumonia over five weeks later, was called as a witness for plaintiff. He testified that in his opinion the pneumonia and death in no way resulted from the injury. He stated that the injury was "too far away in time." Dr. Clark stated that the exposure on February 20, 1934, was the cause of the pneumonia that resulted in death.
Two other doctors testified for plaintiff. Neither had seen the deceased at any time nor been consulted by him. In answer to hypothetical questions, based in part on the testimony of Dr. Clark, they stated that it was their opinion that the accident weakened the deceased's resistance to the pneumonia germ and was a contributing cause of death. To connect the accident with the subsequent pneumonia, plaintiff relied upon evidence adduced at the trial tending to show that from the date of the accident deceased had a rasping cough. The attending physician had no history of such a cough and testified that in all probability deceased did not complain of it to him. The other two doctors conceded that it is impossible to ascertain from the physique of a patient what his resistance to pneumonia may be. Strong, healthy, and athletic men in many instances have a low resistance, while weak, frail looking men may have a high resistance. The virulence of the germ is often the determinative factor. Admittedly one in good health will have higher powers of resistance than a person in poor health. All the medical experts agreed that the germ that caused the attack in the present case was particularly virulent. Both doctors, whose testimony is relied upon by plaintiff, stated that as far as they knew the pneumonia attack might have been fatal had the accident never occurred. Neither had any way of knowing deceased's physical condition prior to the accident or whether his resistance to a virulent pneumonia germ was high or low. They had no way of telling how much the injury had lowered resistance.
Taking the testimony of the three medical experts who were called by plaintiff, we find that the one best qualified to testify, the attending physician, stated that the accident and consequent injury *Page 57 were too remote to have had any connection with the fatal termination of the attack of pneumonia. The injury was minor in character. The other two doctors, while stating that deceased's resistance had been lowered by the injury and that it was a contributing cause of death, admitted that death might have ensued in this particular case regardless of the injury. In that state of the record it seems to us that the opinions of the two nonattending medical experts (which is the only evidence attempting to connect the injury with the death) establish a remote rather than a proximate connection between the injury and the death.
In Anderson v. Anderson, 188 Minn. 602, 248 N.W. 35, cited by plaintiff, there were facts directly connecting the injury with the subsequent pneumonia.
The burden was on plaintiff to establish the causal connection between the injury and subsequent death. We said in Maher v. Duluth Yellow Cab Co. 172 Minn. 439, 441,215 N.W. 678, 679:
"The negative prevails automatically without evidence either way, and should prevail in the absence of a preponderance of proof for the affirmative. * * * The proof must not only agree with but must also furnish reasonable support for the 'hypothesis which it is adduced to prove.' Lillstrom v. N. P. R. Co. 53 Minn. 464, 55 N.W. 624, 20 L.R.A. 587."
See also Peterson v. Langsten, 186 Minn. 101, 242 N.W. 549.
Taking the evidence of the plaintiff's witnesses at full face value, as a matter of law it does not show connection as proximate cause between the accident complained of and the death of the plaintiff's intestate. In holding as we do we do not assume to pass upon any of the open questions of fact in the case, but merely to distinguish between cause and condition or occasion. The accident was too remotely connected with the death to be considered as a material factor in its connection therewith.
In so holding we are not reviewing the verdict on questions of fact. We are examining a decision composed of the rulings of both judge and jury, each part of the judicial mechanism, the product *Page 58 of which is decision. Compare State v. Ramirez, 34 Idaho, 623,203 P. 279, 29 A.L.R. 297, 304.
Even though we nullify the verdict, we are not reviewing the action of the jury. The result follows our decision that the trial judge was in error in submitting the case to the jury. In other words, we think he went wrong in answering affirmatively the question of law which should have been answered in the negative — whether on the whole evidence there is any legal basis for a verdict for plaintiff. Such a determination is but the exercise of an appellate judicial function which has been familiar in American and English jurisprudence for centuries.
The question, wholly of law, is whether on the element of proximate cause there is evidence warranting submission to a jury. It is not enough that there was some medical testimony corroborating, not the evidence for recovery (there was no such evidence), but only the affirmative hypothesis. Our duty is not performed without examining that evidence to ascertain whether it has enough substance to support an affirmative finding. As matter of law, it has not, in our opinion.
In Gray v. C. N.W. Ry. Co. 153 Wis. 637, 142 N.W. 505,509, the verdict for a tubercular plaintiff was sustained upon the "direct testimony" of the attending physician that his patient's disease resulted from the injury. But the court, speaking through Mr. Chief Justice Winslow, said [153 Wis. 649]:
"There was medical testimony to the effect that an injury such as plaintiff received is likely to induce or incite tuberculosis by reducing the natural resistance of the patient, lowering his vitality, and putting him in a condition whereby he is unable to withstand infection. If this testimony were the only testimony tending to show a causal relation between the injury and the tuberculosis we should agree with the defendant's contention. If decreased powers of resistance resulting from an injury are to be considered as a link in the chain of causation between the injury and a disease developing years afterward, it is very evident that a large, if not an almost limitless, field is opened up for speculation by juries in a region where there can be no guide and no probability of just results." *Page 59
In City of Nashville v. Reese, 138 Tenn. 471, 197 S.W. 492, L.R.A. 1918B, 349, there was the same kind of medical testimony we have here that pneumonia was of traumatic origin. On that point the decision was that the personal injury was "not the proximate cause of death from a germ disease," although it had weakened the resistance of the injured person. To the same effect see Seifter v. Brooklyn Heights R. Co.169 N.Y. 254, 62 N.E. 349.
Frequently there is such direct connection between trauma and disease that it is apparent without medical testimony. Nicoll v. Sweet, 163 Iowa, 683, 144 N.W. 615, L.R.A. 1918C, 1099, Ann. Cas. 1916C, 661. Or if the connection is not evident otherwise, medical testimony may make it so. Keegan v. M. St. L. R. Co. 76 Minn. 90, 78 N.W. 965. The intervention of disease as the mere "terminal cause" does not relieve from liability. Loveless v. Red Top Cab Co. 158 Wash. 474, 477,291 P. 344, 79 A.L.R. 347, 350. (For additional cases, see the annotation, "Injury as proximate cause of death where disease intervenes," 79 A.L.R. 351.) Time cannot be the determinative factor, although in some cases that intervening between the original wrong and the result ascribed to it may be so short as to be significant and relevant. But if weakened resistance alone satisfies the requirement of proximate causation, the plaintiff should recover irrespective of the lapse of any time short of that of the statute of limitations. That, we think, shows the practical flaw in the thesis that justifies recovery for lowered resistance alone. That doctrine assumes intervention of a cause succeeding the original wrong but antecedent to the operation, as contributing cause, of the lowered resistance. If that intervening cause be dependent on his wrong, the first wrongdoer remains liable. But if it is independent of his wrong, as it must have been here of defendant's negligence, it is settled law that there can be no recovery.
The whole point is that here, under established law, the medical testimony cannot properly be given the effect of creating a fact issue. On its face it is but conjecture, and affirmative decisions cannot stand on such unsupported speculation even though it is a professional emanation. *Page 60
The judgment is reversed with directions to enter judgment for the defendant notwithstanding the verdict.