Peoria, D.&E. Ry. Co. v. Rice

• Decision Date: 18 January 1893
• Citation: 33 N.E. 951,144 Ill. 227
• Parties: PEORIA, D. & E. RY. CO. v. RICE.
• Court: Illinois Supreme Court

144 Ill. 227

33 N.E. 951

PEORIA, D. & E. RY. CO.

v.RICE.¹

Supreme Court of Illinois.

Jan. 18, 1893.

Appeal from appellate court, third district.

Action by William S. Rice against the Peoria, Decatur & Evansville Railway Company. Plaintiff obtained judgment. Defendant appeals. Affirmed.

The second instruction given on plaintiff's request was as follows: ‘(2) The court instructs the jury that, to render servants of a common master fellow servants, in the same line of employment, so as to exempt the master from responsibility to one of such servants for damages sustained by the negligence of another of such servants, it is not enough that such servants are engaged in doing parts of some work, or in the promotion of some enterprise, carried on by the master, not requiring co-operation, nor bringing the servants together, or into such personal relations that they can exercise an influence upon each other promotive of proper caution in respect of their mutual safety, but it is essential that they shall be, at the time of the injury, directly co-operating with each other in the particular business in hand, or that their usual duties shall bring them into habitual consociation, so that they may exercise an influence upon each other promotive of proper caution; so that if the jury believe from the evidence that the servants of the defendant who were in control of and running the freight train of the defendant north from Mt. Pulaski on the afternoon of April 29th, 1890, spoken of in the evidence, (if they were in control of and running the same,) and the plaintiff was not at the time of the injury complained of directly co-operating with each other in the particular business in hand, and that their usual duties did not bring them into habitual consociation, so that they might exercise an influence upon each other promotive of proper caution, then the plaintiff and the servants of the defendant so controlling and running said freight train would not be fellow servants in the same line of employment, so as to exempt the defendant from any liability to the plaintiff that might be occasioned by the negligence of such servants so controlling and running said train.’

The instructions asked by the defendant and refused by the court were as follows: ‘(10) If you believe from the evidence that Rice, plaintiff, saw the train of defendant approaching in time to have gotten upon the caps of the bridge with safety, and could have remained there, while the train was passing, with safety, or if you believe that he had sufficient time to have left the bridge in any other manner with safety to his person, it was his duty to do so; and if the evidence shows a failure in that regard on his part, and that he was injured in consequence of such failure, he cannot recover in this case, and your verdict should be ‘Not guilty.’ (11) If you believe from the evidence that plaintiff, Rice, saw defendant's train approaching, and could have left the bridge where he had been working, with safety to himself, but he chose to attempt to remove the hand car from the bridge and run it a distance of 250 feet or more, and then left it, stepped or jumped off the bridge carelessly or negligently, and that he was injured through his own carelessness and negligence and want of ordinary care in postponing his attempt to leave the bridge, (if the evidence shows he did postpone it,) then he cannot recover in this case.'‘(13) You are instructed that where a person perceives, or has the means of perceiving, by the exercise of ordinary care, that danger is imminent to his person if he pursues a certain line of conduct, and he does pursue it for the advantage supposed to be offered thereby, and declined to adopt any other which he, in the exercise of ordinary care, can see to be certainly safe, (if the evidence shows a safe one,) in the belief that, in adopting the line of conduct chosen, he will be able to escape, but is overtaken by danger, he is chargeable with a want of ordinary care, and he could not recover for injuries resulting from such want of care.’Stevens & Horton and Blinn & Hoblitt, for appellant.

A. G. Jones and Beach & Hodnett, for appellee.

WILKIN, J.

This was an action on the case, by appellee against appellant, for a personal injury alleged to have been received through the negligence of its employes. The case was tried in the circuit court of Logan county, and a verdict returned for the plaintiffs for $8,000. On a motion for a new trial by the defendant the court required the plaintiff to enter a remittitur for $3,000, and, upon his doing so, overruled the motion, and entered judgment on the verdict for $5,000, and costs of suit. To this ruling the defendant excepted, and appealed to the appellate court of the third district. That court having affirmed the judgment of the circuit court, this appeal is prosecuted.

The substantial questions raised on the record open to re-examination in this court-being questions of law only-are: Did the trial court err in refusing to order the plaintiff to submit to a physical examination by medical experts as to the nature and extent of his alleged injuries? Was the jury erroneously instructed as to the law of the case on behalf of the plaintiff? And, did the trial court err in refusing instructions asked on behalf of the defendant? The record shows that, at the close of the plaintiff's evidence in chief, counsel for the defendant requested the court to order the plaintiff to submit to an examination by four physicians named, ‘for the purpose of ascertaining whether he is now in the condition to which he testified; that is, permanently ruptured upon both sides.’ This motion was overruled, and the defendant excepted. The motion was not even supported by the statement of counsel, much less an affidavit or other proof that such an examination was necessary to a full and fair trial of the case. The extent to which courts have gone, sustaining the power to compel such examinations, is that such orders may be made, in the sound legal discretion of the trial court, when it appears that such an examination is reasonably necessary to the attainment of justice. This motion might, therefore, have been very properly overruled upon the authorities cited by appellant, on the ground that no occasion for the examination was shown. Especially so, since the plaintiff had previously undergone an examination by the defendant's principal surgeon at Evansville, at defendant's request, and also submitted to an examination by two physicians of its selection, under an order of court made at a former term. It certainly will not be contended that a plaintiff may be compelled to submit his person to an examination by physicians as often as his case may be called for trial, without any showing whatever as to the necessity therefor. But the ruling in this case was placed upon the broad ground that the court had no power to grant the motion, and this court is committed to that doctrine. We do not think injustice is likely to result to a defendant by a refusal to make such an order, especially when given the full benefit of the fact that the plaintiff has refused to submit voluntarily thereto, as was done in this case, both by evidence and instructions to the jury. The contrary rule would often operate harshly upon the plaintiff, result in embarrassment to the court in trying cases, and be very liable to abuse. Rules of practice must be laid down, not with reference to a single case, but to be applied generally; and we entertain no doubt that our conclusion heretofore announced on this subject is the better and safer practice. The motion was properly overruled. Parker v. Enslow, 102 Ill. 273; Railway Co. v. Caul, (filed Oct. term, 1892,) (Ill. Sup.) 32 N. E. Rep. 389. See Roberts v. Railroad Co., 29 Hun, 154; Pennsylvania Co. v. Newmeyer, (Ind. Sup.) 28 N. E. Rep. 860; McQuigan v. Railroad Co., (N. Y. App.) 29 N. E. Rep. 235; Railway Co. v. Botsford, 11 Sup. Ct. Rep. 1000; Railroad Co. v. Finlayson, 16 Neb. 578, 20 N. W. Rep. 860;Stuart v. Havens, 17 Neb. 211, 22 N. W. Rep. 419.

Four instructions were given at the request of the plaintiff. The first, second, and third of these are condemned by counsel for appellant as being erroneous, and calculated to mislead the jury to the prejudice of the defendant below. The first is in the following language: (1) ‘The court instructs the jury that if they believe from the evidence that the plaintiff, while in the employ of the defendant as section foreman on the 29th day of ...