Louisville, New Albany And Chicago Railway Company v. Wood
| Decision Date | 21 December 1887 |
| Docket Number | 12,560 |
| Citation | 14 N.E. 572,113 Ind. 544 |
| Parties | The Louisville, New Albany and Chicago Railway Company v. Wood |
| Court | Indiana Supreme Court |
[Copyrighted Material Omitted]
Reported at: 113 Ind. 544 at 570.
From the Washington Circuit Court.
G. W Easley, G. W. Friedley, G. R. Eldridge, S. O. Bayless, W. H. Russell, D. M. Alspaugh and J. C. Lawler, for appellant.
J. A. Zaring, S. B. Voyles and H. Morris, for appellee.
The material facts stated in the appellee's complaint are these: On the 21st day of October, 1882, the appellee purchased a ticket and entered one of the appellant's passenger trains. The ticket entitled her to a passage from Salem to Campbellsburg. At the place of her destination the appellants failed and refused to stop the train a sufficient length of time to enable her to leave it, but, having stopped the train, the conductor who had charge thereof, before the plaintiff had sufficient time to get safely off the cars and while the plaintiff was standing on the platform of the cars, which point she had reached while the train was not in motion, signalled the train, so soon as she, the plaintiff, had reached the platform, to move on; the engineer did obey the signal and did start the train in motion before the plaintiff could get off and while she was standing on the platform. After the engineer had started the train, the conductor wilfully, carelessly and improperly seized her, and, without any fault or negligence on her part whatever, wrenched her off the steps and jerked her to the ground, causing her to sustain very great bodily injury.
We can not perceive the slightest ground for the contention of counsel that the complaint is bad. The carrier clearly violated a legal duty in not stopping the train a sufficient length of time to permit the appellee to alight in safety. Terre Haute, etc., R. R. Co. v. Buck, 96 Ind. 346 (49 Am. R. 168); Cincinnati, etc., R. R. Co. v. Carper, 112 Ind. 26, 13 N.E. 122.
The conductor, in jerking the appellee from the train, was guilty of a tort while engaged in the line of his duty, and the appellant is unquestionably liable for such a tort. This liability exists even though the tort was a negligent and not a wilful one. Terre Haute, etc., R. R. Co. v. Jackson, 81 Ind. 19; Louisville, etc., R. R. Co. v. Kelly, 92 Ind. 371; Wabash R. W. Co. v. Savage, 110 Ind. 156, 9 N.E. 85; Cincinnati, etc., R. R. Co. v. Carper, supra, and cases cited.
Counsel say: "There is no averment that the plaintiff was invited or directed to alight at the point she did, so as to bring the case within Columbus, etc., R. W. Co. v. Farrell, 31 Ind. 408."
The halting of the train at the station to which the appellant undertook to carry the appellee was an implied invitation to alight, so that, even if the complaint proceeded on the theory that it is assumed by counsel it does, it would be good. The theory, however, on which it does proceed is, that the conductor in charge of the train heedlessly and wrongfully pulled the appellee from it while it was in motion. The cases we have cited show, beyond all controversy, that the conductor, in the management of the train and in caring for passengers in entering and alighting from the train, is the representative of the company in whose service he is engaged, so that the complaint is good on the theory on which it does proceed.
Undoubtedly, there must be, as counsel assert, a connection between the negligence and the injury. Pennsylvania Co. v. Hensil, 70 Ind. 569 (36 Am. R. 188); Pittsburgh, etc., R. W. Co. v. Conn, 104 Ind. 64, 3 N.E. 636. But we think it too clear to require discussion that the complaint does show that the tort of the conductor caused the appellee's injury.
It is said by counsel: We fully assent to the rule as counsel state it, but we can not agree that they give it a correct application. We have already shown that the conductor's act was within the scope of his employment, so that the rule which counsel invoke is decisively against them. It is also said by counsel that "The case of Terre Haute, etc., R. R. Co. v. Jackson, 81 Ind. 19, in its dictum goes too far;" but counsel are in error, for that case states the rule as counsel concede it, and is abundantly supported by authority. Wabash R. W. Co. v. Savage, supra.
It is further contended that, as the complaint does not directly allege that the conductor was acting within the scope of his employment, the complaint is bad, and we are referred to the case of Helfrich v. Williams, 84 Ind. 553. The plain answer to this is, that the facts stated do show that the conductor was acting within the line of his employment when he pulled the passenger from the train, instead of affording her an opportunity to safely alight, as it was his legal duty to do.
The morning after the injury occurred, Dr. Rife was called to give appellee medical attention, and he testified that she told him "what her trouble was." This testimony was competent. In order to enable a physician to intelligently prescribe or advise, he must be informed of the pains suffered by his patient, and where they are located. To this effect the authorities uniformly go. Carthage T. P. Co. v. Andrews, 102 Ind. 138, 1 N.E. 364, and cases cited; Cleveland, etc., R. R. Co. v. Newell, 104 Ind. 264 (54 Am. R. 312, 3 N.E. 836), and cases cited; Louisville, etc., R. W. Co. v. Falvey, 104 Ind. 409, 3 N.E. 389.
All that the appellee testified that she told her physician was what her pains were, and in what part of her body they were located. Counsel are mistaken in asserting that Dr. Rife was not called as a physician, for he was called in that capacity and in that capacity prescribed for the appellee.
The appellee, while on the witness-stand giving testimony, was allowed to remove a shawl from her feet and exhibit them to the jury. There was no error in permitting this to be done. The text-writers and the decisions all agree that such an exhibition is not improper.
Dr. Wharton says: Whart. Crim. Ev., section 312.
Mr. Best, speaking of this species of evidence, denominates it "real evidence," and says: 2 Best Ev. (Morgan's ed.), section 197.
The old writers often speak of such evidence, and in 1 Hale's Pleas of the Crown, 635, a notable instance is given of its force. Mr. Taylor collects a number of cases, affirms that the species of evidence here under discussion is always competent, and assigns to it the highest rank. 1 Taylor Ev., 513.
An American author, discussing the subject, says: "The injured member may be exhibited to the jury." Abbott Trial Ev., 599.
In a recent article by Judge Thompson, entitled "Trial by Inspection," many cases are collected, all holding that exhibitions of persons or things are proper. 25 Central L. J. 3.
Henry Wade Rogers, in an article entitled "Profert of the Person," discusses the subject, and collects many authorities, all agreeing that exhibitions of injuries are not improper. 15 Central L. J. 2. Cases on the general subject are also collected in Thurman v. Bertram, 20 Alb. L. J. 151.
In Osborne v. City of Detroit, U.S. Cir. Ct., 36 Alb. L. J. 343, it was held not error for a surgeon to thrust a pin into the side of a person alleged to be paralyzed, in the presence of the jury.
Without further comment, we refer to other cases which are directly in point: Schroeder v. Chicago, etc., R. R. Co., 47 Iowa 375; Mulhado v. Brooklyn, etc., R. R. Co., 30 N.Y. 370 (33 Am. R. 540, and note); State v. Wieners, 66 Mo. 13. The principle has been asserted in many cases by this court. Indiana Car Co. v. Parker, 100 Ind. 181; Story v. State, 99 Ind. 413; McDonel v. State, 90 Ind. 320; Short v. State, 63 Ind. 376; Beavers v. State, 58 Ind. 530.
Counsel for the appellant, although they argue the question at length, cite only a single case, that of Ihinger v State, 53 Ind. 251; but, as shown in Indiana Car Co. v. Parker, supra, that case is not in point, for the reason that the only question decided arose upon an instruction. More nearly in point are the cases of Robinius v. State, 63 Ind. 235, Swigart v. State, 64 Ind. 598, and Bird v. State, 104 Ind. 384, 3 N.E. 827; but these cases form an exception to the general rule. In these cases the question was whether the personal appearance of a party could be considered by the jury in determining a person's age, and it was held that it could not. These cases have been vigorously assailed by many writers and courts, but we do not feel it necessary to depart from them, for we think they are distinguishable from our other cases as well as from the present case. As said of Robinius v. State, supra, in one of our former cases: "There is a distinction between such a case and the present, for where age is the material question, as it was in the case cited, the decision upon inspection really determines the whole case; while, in such a case as the present, the inspection of the wounded member simply illustrates and makes clear the testimony of the party and...
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