Epstein v. Pennsylvania Railroad Co.
| Decision Date | 02 November 1909 |
| Parties | SAMUEL EPSTEIN, Respondent, v. PENNSYLVANIA RAILROAD COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Jesse A. McDonald Judge.
AFFIRMED AND CERTIFIED TO SUPREME COURT.
STATEMENT.--This is an action for personal injuries alleged to have been incurred by plaintiff, respondent here, in a wreck on defendant's railroad, on the night of January 6, 1906. Adopting the statement of counsel for appellant, "the only question raised at the trial was as to the extent of the injuries resulting to plaintiff." Without stating them with very great particularity, it is sufficient to say that it is charged in the petition, that plaintiff was caught and pinioned in the wreckage of the train upon which he was a passenger, his ankle sprained, his leg, knee and person stomach and liver, wounded, crushed, bruised, cut, contused externally and internally, and he was greatly and permanently injured and has been confined to his bed and house by reason thereof for a long time, has been prevented from attending to his business as a wholesale dry goods, merchandise and notions dealer, to his great loss and damage; that he was and has been and will be unable to give his ordinary and usual time, care and diligence to his business, prevented from work, labor and services, thereby greatly impairing his earning capacity; that he has been and will be compelled to procure medical attention, medicines, nursing, nurse hire and expenses for them and for physicians, which expense he sets out in detail, averring that these services were, now are and will continue to be necessary for an indefinite period. "That by reason of such great injuries and the horror of said wreck, his nervous system was caused to collapse, and his sexual powers to become impotent, and he has been, and will in the future be, by reason of said injuries and nervous shock, permanently injured, has suffered, and will in the future suffer, great mental pain and bodily anguish." Judgment is demanded in the sum of $ 30,000.
The answer was a general denial, contributory negligence, want of due care, inattention to his injuries after they had been received, want of knowledge or information sufficient to enable defendant to form a belief as to whether or not plaintiff was permanently injured, but that if he did receive permanent injuries at that time and place, they were due to his own negligence and carelessness.
A great amount of testimony was introduced at the trial by the respective parties. Plaintiff testified to the accident and nature and extent of his injuries, his testimony tending to prove them as set out in his petition. In the course of his direct examination this appears:
"Q. Before you were injured were you able to have intercourse with your wife?
Mr Pattison:
The objection was overruled, to which ruling of the court defendant, by counsel, then and there duly excepted.
"A. Yes, sir.
Mr Bond: "Since your injury have you been able at any time to have intercourse with your wife?
Mr. Pattison: "I object to the question on the same grounds."
The objection was overruled, to which ruling of the court defendant, by counsel, then and there duly excepted.
Plaintiff further testified that before his injury his physical condition was "all good," had never been sick in his life. There was no other testimony in the case on this particular point of impotency, either by plaintiff or any other witness, nor did any of the physicians who were examined in the case testify in reference to it, except that one physician, called as a witness by defendant, testified that he had made an examination of the plaintiff's person and found no indication of any disease or injury to his private parts and no abnormality. Asked, on cross-examination, whether or not a man who had been in a railroad wreck and suffered shock under the circumstances attending the wreck which were detailed to him, and who had been injured and laid up for a long time, would be apt to be affected in his sexual organs, he answered that he did not think so, did not think that that would necessarily follow, and did not think that such result would come from these injuries or from this shock; that he might be more or less shocked from fright. On re-direct examination, this witness testified that he was not a neurologist. Counsel for plaintiff then calling his attention to the fact that he had been asked some questions about the possibility of the fright such as plaintiff had spoken of, affecting the size, etc., of the genital organs, asked him what he would say about it as to whether he (the physician) knew anything about that and whether that came in the line of his practice, to which he answered, All he does know, he testified, is that he found the organs in a normal condition.
It also appeared in evidence that when plaintiff was first injured, he was taken to a hospital and there attended by a Dr. Elston. Dr. Elston was called as a witness by the defendant and he testified as to the condition in which he found plaintiff at the hospital and to what had taken place there during his examination of the plaintiff, and also testified that he had with him at the time two assistants, Dr. Phelps and Dr. Christie. Plaintiff himself had testified to his treatment in the hospital and that when he was treated by Dr. Elston, the other two doctors were also there.
At the trial counsel for defendant stated that he desired to ask the court to pass upon the question whether or not the two physicians who assisted Dr. Elston in the hospital and whose depositions had been taken and were on file are competent witnesses to testify as to what they saw, and he offered their depositions, which are in the record and are statements of the observations of these two physicians and surgeons as to the nature of the injuries and their extent and probable duration. Counsel for plaintiff objected to their depositions being read, on the ground that these two surgeons were assistants of Dr. Elston and that they and Dr. Elston were plaintiff's physicians and that whatever took place between him and them was a privileged communication. The court sustained the objection and excluded the depositions, defendant duly excepting.
The deposition of a witness named Andrews, taken on behalf of defendant, was read in evidence. In that deposition Andrews was asked by counsel for defendant this question: "You didn't observe the injuries he complained of, did you?" To which he answered, "The physicians were there; they examined him and said there were no bones broken." This answer was objected to at the trial by counsel for plaintiff, objection sustained and the answer excluded, defendant duly excepting. On this witness being re-examined, as appears by the deposition, he said, in answer to a question, that his impression was that the physician told Epstein, the plaintiff, that there were no bones broken. This was objected to, the objection sustained and the answer excluded.
At the instance of plaintiff, the court gave several instructions, and while defendant excepted to the giving of all of the instructions, the particular instruction now objected to in the brief and argument submitted to us, and the only one now objected to, is that part of the instruction covering the measure of damages, and occurring in the fourth instruction given at the instance of plaintiff. After instructing that the jury was entitled to assess his damages in such sum as will reasonably compensate him for whatever injuries complained of by plaintiff in his petition the jury believed from the evidence he has sustained, if any, the court, after defining what reasonable expenses could be included and that pain of body and mind, peril and fright, if any, could be taken into consideration and that nervous shock, if any, directly caused by the injury could be taken into consideration, instructed that the jury might also consider, in estimating damages, "the impotency to his sexual organs, if any, which he has suffered from such injuries and directly caused thereby."
On the part of the defendant, the court instructed the jury that it was for plaintiff to prove the injuries which he claimed he had suffered from the accident and that he is entitled to recover for only such injuries as set forth in the instructions herein as it appears from the preponderance of the evidence that he has suffered. The jury were further instructed, at the instance of defendant, that the evidence submitted in the trial as to plaintiff's inability to attend to business is to be considered only so far as it tends to prove that plaintiff was suffering physically and mentally as the result of the accident; that the jury are not to take into consideration, as tending to prove damages, any loss arising from plaintiff's past or present inability to attend to business, and the jury, in assessing damages were not to take into consideration any loss of time since the accident and up to the time of the trial during said period to attend to business, "since these do not under the pleadings and evidence in this case constitute any element of damage for which plaintiff is entitled to recover." The third instruction given at the instance of the defendant, was to the...
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