Goodhart v. Pennsylvania Railroad Co.

• Citation: 35 A. 191,177 Pa. 1
• Decision Date: 15 July 1896
• Docket Number: 170
• Parties: James M. Goodhart v. The Pennsylvania Railroad Company, Appellant
• Court: United States State Supreme Court of Pennsylvania

35 A. 191

177 Pa. 1

James M. Goodhart v. The Pennsylvania Railroad Company, Appellant

No. 170

Supreme Court of Pennsylvania

July 15, 1896

Argued May 25, 1896

Appeal No. 170, Jan. T., 1896, by defendant, from judgment of C.P Mifflin Co., Nov. T., 1894, No. 129, on verdict for plaintiff. Reversed. STERRETT, C.J., dissents.

Trespass for personal injuries. Before WILLIAMSON, P.J.

At the trial it appeared that plaintiff was injured on September 20 1893, while a passenger on the first section of the Pacific Express on the Pennsylvania railroad in traveling from Harrisburg to his home at Lewistown.

When the plaintiff was on the stand the following offer was made:

Mr Woods: We offer to prove by the witness and by other testimony that Dr. Morton was sent there by the Penna. R.R. Company to make an examination of Mr. Goodhart; that he was brought there by Dr. Mahon, their physician, in pursuance of their request for Mr. Goodhart to go to Philadelphia to submit to this examination. We propose to prove just what took place in the room at the time the examination was made and the results of it; just what Dr. Morton did. This for the purpose of proving the extent of the injury to the plaintiff, also to show his desire to comply with the requests of the defendant in order to get such relief as they and their experts could give him.

Mr. Elder: It is objected that what took place at this examination was not part of the res gestae, that the results of the examination can be proved by the physicians, and that it is not alleged by the plaintiff that as a result of that examination his injuries were rendered more severe. What occurred at that examination at that time is not part of the happening of the accident, throws no light on how the injuries were incurred; what occurred at that examination can throw no light upon the extent of the injuries; it is not evidence, as counsel offer to show the extent of the injuries; it is evidence of outside matters which have no bearing on this case and the points at issue in it are irrelevant, immaterial and incompetent.

By the Court: Mr. Goodhart, if he knows it, is permitted to show that Dr. Morton came there as the physician of the defendant; but as to the result of the examination and what was said and done there there may be a time when that evidence can be offered, but it must be offered after the examination of Dr. Morton. You can show what he did, but not give his opinion. The objection is overruled, the evidence admitted, and a bill sealed for defendant.

Mr. Woods: Go on and state what happened. What Dr. Morton did, not what he said. A. Dr. Morton took a chair and called for some writing paper, which Dr. Mahon procured by ringing the bell and calling for it. He then began to ask me questions, and some of the questions I thought had nothing to do with my injuries. I waited awhile but finally, as he continued the questions, I told him that I came there for a medical examination and not for a legal one, and if he persisted in asking such questions as those I insisted upon having my attorney present. He immediately stopped and commanded me to take off my clothes. I told him that this was something I could not do and had not been able to do since my injuries. He said, "Well, try it." I told him, "Doctor, I can't do it." He says, "You have not tried." I says, "I can't, Doctor." At that point Dr. Mahon stepped up and assisted me in taking off my clothes. The room at that time was in a very cold and chilly condition; if I mistake not the gentleman had his overcoat on. Dr. Mahon had I know. I was then placed in the middle of the room standing. He began to examine me; asked me questions about my injuries. This occupied some time. When he turned me around, I noticed another gentleman in the room who had come in unbidden and without any permission on my part, I assure you. I was not introduced to the gentleman, did not know who he was, nor anything about it. But I soon found out from the conversation that he was Dr. or Professor Forbes. This examination went on for some time. The cane with which I supported myself was taken out of my hand and thrown on the floor. Dr. Morton then asked me to stoop down and pick it up. I told him that I could not do it. "Well, try." I told him that there was no use in trying, that I had not been able to stoop down and pick up anything since my injury. Then they proceeded to test or try me with a galvanic battery, electricity. I objected to this on account of my nervous condition. But after the assurance on their part that the battery was very lightly charged, and to assure me of this fact they placed it in my hands and upon my shoulders, I then consented; and this battery was used not only from my feet up to my knees but from my toes to the roots of my hair, over the sore sport on my back and every place else where they could apply it. In the work of this examination my clothes were lying on the floor, my pantaloons had been jerked out of the way by Dr. Morton, and the contents of my pockets were strewn over the floor. I pleaded, as I would plead for my life, that I be allowed to put my pantaloons on. I was standing there trembling like a leaf, every nerve in my body was unstrung. He said, "Well, go on and put them on." I told him that I could not do it. Dr. Mahon went to pick up my pantaloons and put them on. He said, "Let him do it himself." I could not do it. . . . The gentlemen after making this examination all left the room, allowing me to stand in the middle of the floor with nothing on but a thin undershirt and a pair of stockings, which Dr. Mahon had put on me when I asked to have my pantaloons put on. I want to state here that all this time I was standing. I was not sitting down at all during the whole examination. After they had left I went to the bed. It was lying on the floor where I could not reach it. I crawled to the bed as best I could, and laid down in the bed with nothing to cover my person but a thin quilt. In that condition my wife found me a half hour afterwards. [1]

Plaintiff further testified:

Q. What were your expenses at the hospital? A. At the hospital my expenses were $109.17. Expenses about the house, extra hire and help, were $85.00. I charge twenty-three weeks nursing by my wife, at $10.00 a week, making $230. I charge fifty-four weeks nursing and care, at $6.00 a week, making $324. Bill of examination of Dr. Wood, $25.00; Dr. Harshberger's bill of $118; Dr. Hamilton, $10.00; bill for medicine of $48.02.

Mr. Elder: We object to the admission of the two items there of $230 and $324 for the reason that nursing expenses are such as the plaintiff has either paid or incurred a legal liability for, and in this case he has done neither, and they are consequently inadmissible.

By the Court: The objection is overruled and this testimony so far as it goes to establish that is admitted. Bill sealed for defendant. [3]

Mr. Woods: We offer to prove by this witness that his training was that of a business man and merchant. That he was a clerk in Blymyer's store for a number of years, and afterwards went into business for himself and continued as a merchant up until a short time before this accident happened, and what he was able to earn in his business as a merchant while he was in good health.

Mr. Elder: We object that the plaintiff does not offer to prove what the plaintiff was earning at the time of the happening of this accident, but only refers to a period some time before the accident; that what he was earning at the time of the injury, and not what he was earning at some prior time, is competent in this case.

By the Court: The objection is overruled, the evidence admitted and a bill sealed for defendant. We think that his earning capacity is a question for the jury to take into consideration in establishing what he has lost by the accident.

Mr. Woods: Go on and state when you entered Blymyer's store as a clerk? A. I think it wa in 1862 or 1863. Q. How long were you there? A. Six years. I began clerking for Blymyer at $5.00 a month. Q. After you left Blymyer's what did you do? A. Entered into a partnership with James Ritz Burns and John H. Houtz, in the mercantile business, and established what is now known as the "Iron Front Store." Q. How long did that firm last? A. Until 1875. Q. Then what? A. Then Houtz and I took charge of the business. Q. From the time that you and Mr. Houtz took charge of the business, state whether or not you made a success of it? A. Yes, sir, we made a success of it; we did not make so much of a success previous to that. Q. What was your average earnings during that time? A. I think I may safely say that my average earnings during that time was $2,500 a year, or thereabouts. [4]

James Macklin sworn for plaintiff.

Mr. Woods: We offer to prove by this and other witnesses that Mr. Goodhart was an experienced business man and merchant, and what his earning power as such was; this for the purpose of showing what his earning power as a business man and merchant was.

Mr. Elder: It is objected that what was the earning capacity of the plaintiff is not susceptible of proof by experts, that the witness upon the stand has not shown any knowledge of Mr. Goodhart's business, the profits and losses sustained and the income, from which to enable him to speak; that the admission of testimony of this character would substitute the opinion of the witness for a fact. That what his earning capacity was is susceptible of exact proof in dollars and cents by the books of the concern, that it is not the best evidence; that it is irrelevant and immaterial and incompetent.

By the Court: The witness having testified that he has known him as a business man for twenty years, the evidence is admitted and a bill sealed for defenda...