Chicago, R. I. & T. Ry. Co. v. Langston

• Decision Date: 26 November 1898
• Citation: 47 S.W. 1027
• Parties: CHICAGO, R. I. & T. RY. CO. v. LANGSTON.
• Court: Texas Court of Appeals

47 S.W. 1027

CHICAGO, R. I. & T. RY. CO. v. LANGSTON.

Court of Civil Appeals of Texas.

November 26, 1898.

Appeal from district court, Montague county; D. E. Barrett, Judge.

Action by Rosa Langston against the Chicago, Rock Island & Texas Railway Company. Judgment for plaintiff. Defendant appeals. Reversed.

Graham & Turner and J. M. Chambers, for appellant. C. B. Randell and W. W. Wilkins, for appellee.

STEPHENS, J.

In attempting to board one of appellant's passenger trains at Bridgeport, Tex., on the night of September 13, 1895, appellee fell or was thrown under the car, and in consequence thereof both of her feet were crushed and had to be amputated. On account of this severe injury and great loss, she recovered a verdict and judgment for $25,000, from which this appeal is prosecuted.

On the question of appellant's liability, the evidence, both as to negligence and contributory negligence, was conflicting, and that issue was fairly submitted to the jury, both in the rulings on the evidence and in the charge, though possibly there was error in permitting a certain line of argument complained of. We proceed, therefore, to consider the exclusion of certain expert testimony affecting the measure of recovery.

Upon her examination in chief, she being the first witness, appellee, after fully describing her injuries, unwrapped her injured limbs, and exhibited them in the presence of the court and jury. Just before doing so she testified: "My right leg is still sore. The other one is healed up. They are both tender. I have some little tin things that I put on my legs when I move from one place to another, and my daughter and son with me. It takes two persons to lift me. I cannot bear any weight on my right leg." Here the tin things, termed "cans" by some of the witnesses, were shown to the jury, attended with an explanation of how they were worn. Just before resting her case she offered Dr. Poindexter as an expert witness, who testified: "I examined her limbs, where the amputation was performed, this morning. One is partially healed, and the other is not. It is in a very irritated condition, and my notion is will probably be that way always. I do not think it will ever heal. I do not think it would be a very good idea to amputate any more. I would consider it dangerous now to her life. She cannot use artificial limbs on those stumps. You can use only on healed stumps; hers are unhealed. You could not use artificial limbs on either one of them. One looks like it has been healed. The other one never has been healed; at least, it shows places there that there might be indications of pus. It is irritated, red, and inflamed." Upon further examination, cross and redirect, his testimony tended to prove that, in his opinion, the limbs would never heal, because of "a deposit of calcine matter," and that this condition resulted from the splitting of the bones at the time of the injury; and also that, in his opinion, no harm resulted from the use of the tin cans. Appellant offered as experts in its behalf Drs. Saunders and Reily, who qualified themselves as such. Dr. Saunders testified: "I haven't examined the plaintiff in this case. Taking the plaintiff injured as she is, I think I could tell by an examination, with reasonable certainty, whether the stubs of her limbs would ever get well enough for her to wear artificial limbs." He then proceeded to explain how an examination would enable him to determine whether artificial limbs could be worn, and stated positively that such examination would enable him to tell whether the existing trouble was due to a diseased bone. His testimony was at variance with that of Dr. Poindexter as to the advisability and effect of wearing the tin cans. Dr. Reily had amputated the limbs soon after the accident, more than two years before the trial, and testified: "If I should examine her now, I think I could tell whether she is now able, or would at any time hereafter be able, with proper care and treatment, to wear or use artificial limbs. I advised her, while treating her, that she would be able to wear artificial limbs. I told her that she would be able to wear them in four months. * * * She moved away before the time was out."

Appellant was denied the opportunity on the trial of having these witnesses examine the injured limbs, and testify in relation thereto, as will more fully appear from the following bill of exceptions: "Be it remembered that on the trial of the above-entitled cause the defendant requested of plaintiff's counsel permission for Dr. Bacon Saunders and Dr. H. Relly, surgeons of defendant, and in defendant's regular employment, to examine the condition of plaintiff with reference to her injuries, which permission was refused by plaintiff's counsel, on the ground that said Saunders and Reily were in the employment of the defendant, and plaintiff's counsel offered to have plaintiff examined by any number of physicians the court might see proper to appoint, on defendant's application, who were not in any way connected with plaintiff or defendant; that defendant's counsel thereupon made application to the court, and requested the appointment of said Saunders and Reily to examine the plaintiff; that thereupon plaintiff's counsel made the same objection they had made to defendant's counsel, and renewed their said offer; that defendant's counsel thereupon said they would not insist upon the appointment of Dr. Reily, but would be willing for the court to appoint a commission of three physicians and surgeons to examine plaintiff, provided one of them was the said Dr. Bacon Saunders; that the reason that the defendant insisted on the appointment of said Dr. Saunders was because of his known reputation as a surgeon, and because defendant's counsel did not believe that his equal was accessible to the court; that plaintiff's counsel objected to the appointment of Dr. Saunders, on the ground that he was in the employment of defendant, and had been brought here by defendant from Ft. Worth for the express purpose of testifying in its behalf, and on the ground that he might be a partisan, but stated that any three doctors or any number of doctors whom the court would regard as competent and impartial, and who were not connected, by employment or otherwise, with the plaintiff or defendant, would be acceptable to plaintiff, and plaintiff had no objection to such commission being appointed by the court to make such examination; that the court asked plaintiff's counsel if Drs. Saunders Reily, and Stinson would be satisfactory, whereupon they objected to Drs. Saunders and Reily for the reasons stated above; that they did not know Dr. Stinson, but, if the court thought that he was competent and impartial, they did not object to him, or any number of doctors of that description; that thereupon defendant's counsel objected to the appointment of any commission unless the said Dr. Saunders was also appointed, because of his said reputation as above stated; that the court then said that he would appoint Dr. Stinson, if he was satisfactory to the parties, and he could act or not, as they saw proper; that thereupon the defendant introduced Drs. Saunders and Reily, and asked each of said witnesses if he could tell, by an examination of plaintiff's injuries, whether or not she, the plaintiff, would ever be able to use artificial limbs, which question both of said witnesses answered in the affirmative; that thereupon defendant's counsel propounded the following interrogatory to each of said witnesses separately, `Doctor, will you please here and now examine the plaintiff and her injuries?' that plaintiff's counsel objected on the ground that said witnesses were in the employment of the railway company, and were partisan, and not impartial, and that they had not been appointed by the court to make such examination, and defendant had no right to have such examination made without the consent of plaintiff, and that plaintiff was ready to submit to an examination by doctors considered by the court to be impartial and competent, and who were not in any way connected, by employment or otherwise, to plaintiff or defendant; which objection was sustained by the court, and the defendant excepted, and here tenders this its bill of exceptions, the same being No. 16. Defendant could have proved by said witnesses that plaintiff could at that time wear artificial limbs without pain, and get about on them in such manner that her injuries could not be detected in her locomotion. The conversation between the court and counsel relative to the appointment of a commission, above referred to, was not in the hearing of the jury."

Dr. Stinson, being thus permitted to make an examination, did so, and was offered as a witness by appellee. After describing what his examination disclosed, he was asked: "Take that limb in its present condition, and allow it to go on without an operation, could she use an artificial limb?" to which he answered: "It is possible that a limb might be devised where the pressure would not fall on the end of the stump. It is possible to devise an artificial member where the stump would not be in contact with the limb, and it might be possible for her to wear it. If the stump should come in contact with the artificial member, she could not wear it." In the main, however, his testimony was favorable to appellee, and tended to show that artificial limbs could not be used, though not so much so as that of Dr. Poindexter. No other experts were introduced.

In this state of the record, was it material error for the court to refuse the request of appellant to have experts of its own selection examine the injured limbs so exhibited to the court and jury, and give their opinions as to whether appellee was capable of using artificial limbs? If error at all, it was clearly material. The amount of the verdict should, and doubtless would, have been materially less if the jury had believed that, instead of...