Raymond v. Burlington, C.R. & N. Ry. Co.

Citation21 N.W. 495,65 Iowa 152
PartiesRAYMOND v. THE BURLINGTON, CEDAR RAPIDS & NORTHERN R'Y CO
Decision Date03 December 1884
CourtUnited States State Supreme Court of Iowa

Appeal from Linn Circuit Court.

ACTION to recover for injuries alleged to have been sustained by being thrown from the platform of the defendant's car by reason of the sudden and careless starting of the train while the plaintiff, as a passenger, was in the act of leaving it at a station. There was a trial to a jury, and verdict and judgment were rendered for the plaintiff. The defendant appeals.

AFFIRMED.

S. K Tracy, for appellant.

Stoneman Rickel & Eastman, for appellee.

OPINION

ADAMS, J.

This case is before us upon a rehearing. The opinion now filed is not substantially different from the former, except in regard to one instruction, which was held to be erroneous.

I. The defendant introduced as a witness Dr. J. R. Kinney, who testified that he was surgeon of the defendant, and was called to attend plaintiff; that he asked him some questions in regard to his injury; that he wanted information to enable him to judge if the company was responsible; that it was absolutely necessary for him to enable him to obtain a diagnosis, and that all surgeons do that. He also testified that the injury would be more severe if the cars were in motion. The defendant also introduced Dr. H. Ristine, who testified that he was a physician, and was called to assist Dr. Kinney in treating the plaintiff; that he asked the plaintiff how he got hurt, and heard him state how the accident happened, in the presence of Dr. Kinney and Dr. J. M. Ristine. The defendant then asked the witness the following question: "Now I will ask you to state what the plaintiff said, if anything, as to how the accident occurred, and how he got injured?" The plaintiff objected to the question as calling for a professional communication necessary and proper to enable the doctor to exercise his professional functions. In answer to a question by the court, the witness stated that he was called as consulting physician, and asked this question for the purpose of ascertaining the facts in order to properly treat him. The court thereupon sustained the objection. The defendant thereupon offered to show by this witness that the plaintiff, in response to questions asked, stated that he stepped off the car while it was in motion, and thus fell and received the injury sued for. The court excluded the evidence, and the defendant assigns the action of the court as error.

The Code, § 3643, provides: "No practicing attorney, counselor, physician, surgeon, minister of the gospel, or priest of any denomination shall be allowed, in giving testimony, to disclose any confidential communication properly intrusted to him in his professional capacity, and necessary and proper to enable him to discharge the functions of his office according to the usual course of practice or discipline." Dr. Ristine testified that the communication was made by the plaintiff in response to a question asked for the purpose of ascertaining the facts, in order to properly treat him; and Dr. Kinney testified that the injury would be more severe if the cars were in motion. In view of this testimony, we think the communication comes within the protection of the statute.

II. The defendant also introduced Dr. J. M. Ristine, who testified that he was a partner of Dr. H. Ristine, and heard the statements made to him. The defendant offered to prove by this witness the same communication sought to be proved by Dr. H. Ristine, and claimed the right to do so upon the ground that the communication was not made to this witness, but merely in his hearing. Manifestly, it would violate the spirit of the statute to permit a physician to disclose a communication made in his presence to his partner.

III. The defendant complains of an instruction given by the court, to the effect that it was the duty of the defendant, as a common carrier of passengers, to exercise extraordinary care and caution; but it appears to us that the rule of the instruction is well settled. Sales v. Western Stage Co., 4 Iowa 547.

IV. The court gave an instruction in these words: "You have been instructed that the burden is upon the plaintiff to prove that he was free from contributory negligence; and the court further instructs you that such requirement of law is sufficiently complied with when the plaintiff has given in the testimony...

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  • Monaghan v. Equitable Life Ins. Co. of Iowa
    • United States
    • Iowa Supreme Court
    • 28 Septiembre 1918
    ... ... 740; Sales v. Western Stage Co., 4 Iowa 547); ... "extraordinary care and caution" ( Raymond v ... Burlington, C. R. & N. R. Co., 65 Iowa 152, 154, 21 N.W ... 495); "highest degree of ... ...
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    ... ... W. 466, 56 Am. Rep. 858;Sales v. Stage Co., 4 Iowa, 547. Extraordinary care and caution. Raymond v. Railway Co., 65 Iowa, 154, 21 N. W. 495. Highest degree of skill and foresight consistent with ... ...
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