Cincinnati, N.O. & T.P. Ry. Co. v. Nolan

• Citation: 161 Ky. 205,170 S.W. 650
• Parties: CINCINNATI, N. O. & T. P. RY. CO. v. NOLAN.
• Decision Date: 24 November 1914
• Court: Court of Appeals of Kentucky

170 S.W. 650

161 Ky. 205

CINCINNATI, N. O. & T. P. RY. CO. v. NOLAN.

Court of Appeals of Kentucky.

November 24, 1914

Appeal from Circuit Court, Lincoln County.

Action by Edward Nolan against the Cincinnati, New Orleans & Texas Pacific Railway Company. Judgment for the plaintiff, and defendant appeals. Reversed and remanded.

John Galvin, of Cincinnati, Ohio, and J. W. Alcorn and K. S Alcorn, both of Stanford, for appellant.

Robert Harding, Emmet Puryear, and J. W. Rawlings, all of Danville and P. M. McRoberts, of Stanford, for appellee.

HOBSON C.J.

On May 14, 1913, Edward Nolan was head brakeman on a train of the Cincinnati, New Orleans & Texas Pacific Railway Company which left Danville, Ky. about 6:00 p. m. for Oak Dale, Tenn Stearns, Ky. is a station 75 miles south of Danville. The train stopped at Stearns to take water, and it was the duty of Nolan, when it so stopped, to inspect the train and see that all was right. As the train was pulling slowly up to the water tank, and before it stopped, Nolan undertook to descend from the top of one of the cars to the ground, and as he did this, the handhold at the top of the car gave way with him, and he was thrown to the ground. A little while after this he appeared at the station, apparently suffering great pain, and was taken by another train back to Somerset and put in the hospital there. The physicians in charge of the hospital could find no evidence of a broken bone. His complaint indicated that some of the bones where the leg joins the body, might be broken, but he declined to allow the physicians to put him under the influence of an anæsthetic, and this was the only way in which they could tell whether the bones were broken. After staying at the hospital about a month, he was taken home, and later brought this suit against the company, charging, in substance, that in his fall the hip joint bones were broken. After the answer was filed and on November 6, 1913, on motion of the defendant, the court entered an order that the plaintiff, Edward Nolan, should go, on November 8th, at about the hour 3:30 p. m., to the office of Dr. Lewis, in the city of Lexington, and then and there submit himself to an X-ray examination to be made by Dr. Lewis for the purpose of ascertaining whether or not one of his hip bones was broken and what his injuries were, and that Dr. Lewis report in writing the result of the examination; an attorney of each of the parties being allowed to be present at the examination. It was provided in the order that Nolan should not submit himself to the examination, and that Dr. Lewis would not make it, if, in the opinion of the doctor, danger to Nolan was to be reasonably apprehended therefrom. The plaintiff excepted to the order, and moved the court to set it aside. This the court refused to do. Nolan went to the physician's office about 5 o'clock on November 8th with his attorney, who stated to the physician that Nolan had been exposed to the X-ray four times within the past three weeks, and that they refused to allow him to make a picture unless he would be responsible for any trouble that might come from the use of the X-ray. As Nolan had been exposed several times and the physician did not know how long the exposures had been, he was not willing to assume the responsibility, and no examination was made. When the case was called for trial on November 12th, the defendant filed an affidavit for continuance, setting up the facts we have stated, and asking that the trial be postponed in order that the X-ray examination might be made; as an X-ray examination would disclose the condition of the bone, and this could be shown in no other way. The affidavit also disclosed the fact that the two physicians who had examined Nolan were unable to discover any indication that a bone was broken. The court overruled the motion for continuance and forced the defendant to trial without an X-ray examination of the plaintiff. We are of the opinion that the motion should have prevailed on the facts stated, for the X-ray examination is the only certain means of discovering the condition of the bones. The alleged fracture and the permanent injury resulting from it were the most important things in the action. The defendant contended that there was no fracture and the plaintiff had received really slight injuries. The order of November 6th was made after the previous X-ray examinations, which were unsuccessful. The court had...