Owens v. Kansas City, St. J. & C. B. R. Co.

• Decision Date: 21 May 1888
• Citation: 95 Mo. 169,8 S.W. 350
• Court: Missouri Supreme Court
• Parties: OWENS et al. v. KANSAS CITY, ST. J. & C. B. R. CO.

8 S.W. 350

95 Mo. 169

OWENS et al. v. KANSAS CITY, ST. J. & C. B. R. CO.

Supreme Court of Missouri.

May 21, 1888.

1. DAMAGES — PRACTICE — PERSONAL EXAMINATION.

In an action against a railroad company for personal injuries causing paralysis, it is not error to refuse to order plaintiff to submit to a personal examination by a medical commission, where she is cross-examined, before the motion is made, in the presence of physicians as to her physical condition, and there is evidence on that point covering almost her entire life.

2. SAME — EVIDENCE.

In an action against a railroad company to recover for injuries sustained while getting off defendant's train, it is competent for the plaintiff, in describing her injuries, to testify that the nerves of her head, side, and left limb are paralyzed.

3. CARRIERS OF PASSENGERS — LIABILITY FOR NEGLIGENCE OF SERVANT — INSTRUCTIONS.

In an action against a railroad company for injuries sustained in getting off a train, an instruction that, if the train did not stop long enough to allow plaintiff to get off, and while she was standing on the platform defendant's brakeman pulled her off, whereby she was injured, then plaintiff can recover, is not defective, where, in another paragraph, the court told the jury that, under such a state of facts, the plaintiff could not recover if guilty of contributory negligence.¹

4. SAME — EXTENT OF LIABILITY.

Where a passenger is negligently pulled off a railroad car by a brakeman, acting within the scope of his employment, the company is liable for all injuries occasioned thereby, though, owing to plaintiff's health, such injuries were more difficult to cure, and by reason of latent disease were more serious than they would have been to a person of robust health.²

5. WITNESS — CREDIBILITY — CONFLICTING STATEMENTS.

Statements of plaintiff purporting to be contained in her deposition partly taken, and then abandoned, are inadmissible to lay a foundation for impeaching her testimony, where she denies making such statements, and there is no other proof that she did.³

RAY and SHERWOOD, JJ., dissent.

Appeal from circuit court, La Fayette county; JOHN P. STROTHER, Judge.

This action was brought by Annette Owens and her husband, Clay Owens, against the Kansas City, St. Joseph & Council Bluffs Railroad Company, to recover for injuries sustained by Mrs. Owens while alighting from defendant's train. Verdict and judgment for the plaintiffs; and from the order denying its motion to set aside the verdict and judgment, and grant a new trial, defendant appealed.

J. D. Shewalter, R. P. C. Wilson, and Strong & Mosman, for appellant. Woodson & Woodson, Wallace & Chiles, Anderson & Cormack, Green & Burnes, and S. C. Woodson, for respondents.

BLACK, J.

This is a suit for personal injuries to the plaintiff, Mrs. Owens, wife of the other plaintiff. She prevailed in the court below, and the defendant appealed. On the 20th November, 1883, she and her daughter were passengers on one of the defendant's trains from Kansas City to Beverly. The petition, which is very lengthy, states, in substance, that defendant negligently failed and refused to stop the train at Beverly long enough to allow the plaintiff a reasonable time to alight in safety; that, as soon as the train stopped, she stepped to the door of the car to get off; that, when she arrived at the car platform, the train was negligently put in motion by defendant; that the brakeman, knowing the train was in motion, unlawfully assaulted, seized, and took hold of her, and violently and negligently pulled and threw her from the cars to the depot platform, inflicting upon her bruises, wounds, etc.; that on account of negligently putting the train in motion, and negligently pulling and throwing her from the platform of the car, she has suffered pain, etc. The answer is a general denial, with the further defense that plaintiff was guilty of contributory negligence in attempting to get off the train when in motion. The evidence for the plaintiff tends to show that, when the train began to slack up, the brakeman said, "This is Beverly;" that he picked up the plaintiff's valise, and walked towards the car door; that the daughter followed him, and plaintiff followed the daughter; that the brakeman assisted the girl to the depot platform. Plaintiff says, when she got to the platform, two persons were getting on the car, so that she stepped through, on the platform of the car in front; that she took hold of the iron rod that extended around the car; that the train was then moving faster; that the brakeman, who was on the depot platform, walking to keep up with the car, reached up, and caught her between the elbow and wrist, and pulled her to the depot platform; that she then became unconscious from injuries to her head, arm, hip, and side. This evidence is corroborated by that of the daughter; and other evidence is that the train stopped from 10 seconds to a minute only. The evidence for the defendant tends to show that the train stopped for the usual and for a reasonable time; that plaintiff attempted to get off after the train had started, and that she fell from the platform of the car; that the brakeman warned her not to get off, and at the same time was trying to signal the engineer to stop.

1. The suit was commenced in the Platte circuit court, and transferred to the La Fayette circuit court, by change of venue. There defendant, at the March term, 1884, filed a motion asking the court to require plaintiff to submit her person to an examination by a commission of medical experts, to be appointed by the court, in order to determine the character of the injuries, and to what extent they were due to the accident. This motion was not determined until the term at which the cause was tried, April, 1885, when it was overruled, and the defendant excepted. It was in substance held in Shepard v. Railway Co., 85 Mo. 629, that the defendant has no absolute right to have a personal examination; that it is a matter in which the court has a discretion, the exercise of which will not be interfered with, unless manifestly abused. Of course, the court is not bound to refuse or to grant the motion to the full extent of the prayer. Its order may be moulded to suit the circumstances of the case. In that case, the plaintiff, a lady, had once submitted to an examination by one physician, and offered to submit to an examination by another eminent and reputable surgeon; but with this the defendant was not satisfied. Under these circumstances, we held, in that case, that there was no error in refusing the motion. In the later case of Sidekum v. Railway Co., 93 Mo. 400, 4 S. W. Rep. 701, it was held there was no error in refusing such a motion. In that case the trial court was of the opinion that an examination was not necessary in order to ascertain the real condition of the plaintiff, and the nature and extent of her injuries. This court, upon an examination of the evidence, reached the same conclusion. The ruling is certainly based, in part, upon that ground. The power of the court to make and enforce an order for the personal examination of the injured party must be taken as established in this state, as it is in many others. Schroeder v. Railroad Co., 47 Iowa, 375; White v. Railway Co., 61 Wis. 536, 21 N. W. Rep. 524; Hatfield v. Railroad Co., 33 Minn. 130, 22 N. W. Rep. 176; Railroad Co. v. Thul, 29 Kan. 466. The court might, with propriety, have made an order for the examination of the plaintiff in this case, by a disinterested reputable physician, in the presence of her husband, if desired, and lady friends. But the real question here is whether there has been an abuse of the discretion lodged in the trial court. In the plaintiff's deposition, taken and filed before this motion was made, she says that, when the brakeman pulled her from the car-step, her head, left arm, and hip struck against the car; that, because of the injuries then received, she has lost the use of her left arm and her left leg; that the arm is paralyzed; that since then she has not been able to stand on her feet, whereas before she was able to attend to her household duties. She was cross-examined for many days, and at great length, answering between five and six hundred questions, often in the presence of physicians employed and taken to the bed-room by defendant, but not introduced to her. This examination shows that she received an injury in the back when 13 years of age; that, a few years before the accident in question, she went to Denver for her health; that, while there, her shoulder was dislocated; that she was subject to rheumatism in her left side and arm, and suffered from what she terms rheumatic neuralgia, and had been under the charge of a physician for years. Much other evidence was offered on the one side and the other, disclosing the state of her health, both before and after she received the injuries complained of. This evidence was given by persons who could and did detail facts within their observation. Some of it goes to show that there was no perfect paralysis; but that she was suffering greatly from the injuries cannot be doubted. A medical examination could add no information as to her previous health, and but little to her subsequent condition. It is suggested that she represents her condition to be worse than it...