Louisville v. Wood

• Citation: 14 N.E. 572,113 Ind. 544
• Parties: Louisville, N. A. & C. R. Co. v. Wood.
• Decision Date: 21 December 1887
• Court: Supreme Court of Indiana

113 Ind. 544

14 N.E. 572

Louisville, N. A. & C. R. Co.

v.Wood.¹

Supreme Court of Indiana.

December 21, 1887.

Appeal from circuit court, Washington county; T. S. Collins, Judge.

This was an action brought by Lizzie Wood against the Louisville, New Albany & Chicago Railroad Company for injuries caused by the negligence of a conductor on one of the company's trains. The plaintiff recovered judgment, and the defendant appealed.Geo. W. Easley, Geo. W. Friedley, and W. H. Russell, for appellant. Voyles & Morris and John A. Zaring, for appellee.

Elliott, J.

The material facts stated in the appellee's complaint are these: On the twenty-first 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, signaled 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 willfully, 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 cannot 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. Railroad Co. v. Buck, 96 Ind. 346, 49 Amer. Rep. 168; Railroad Co. v. Carper, ante, 352, (May term.) 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 willful, one. Railroad Co. v. Jackson, 81 Ind. 19;Railroad Co. v. Kelly, 92 Ind. 371;Railway Co. v. Savage, 110 Ind. 156, 9 N. E. Rep. 85; Railroad 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 Railway 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;Railway Co. v. Conn, 104 Ind. 64, 3 N. E. Rep. 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: “While the carrier is responsible for negligence willfully or carelessly inflicted upon passengers by servants employed in the performance of duties within the general scope of their employment, the question in such cases is whether the servant, when he inflicted the injury, was acting within the line of his employment; not whether the particular act was authorized or not. Railroad Co. v. Kelly, 92 Ind. 371.” We fully assent to the rule as counsel state it, but we cannot 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 Railroad Co. v. Jackson, 81 Ind. 20, 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. Railway 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 duty when he pulled the passenger from the train, instead of affording her an opportunity to safely alight, as it was his duty to do.

The morning after the injury occurred, Dr. Rife was called to give the 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. Turnpike Co. v. Andrews, 102 Ind. 138, 1 N. E. Rep. 364, and cases cited; Railroad Co. v. Newell, 104 Ind. 264, 3 N. E. Rep. 836, and cases cited; Railway Co. v. Falvey, 104 Ind. 409, 3 N. E. Rep. 389, and 4 N. E. Rep. 908. 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: “Injury to the person may also be proved by inspection. Thus, in an action to recover damages for an injury to a limb, the injured limb may be exhibited on trial.” Whart. Crim. Ev. § 312. Mr. Best, speaking of this species of evidence, denominates it “real evidence,” and says: “Immediate evidence is where the thing which is the source of the evidence is present to the senses of the tribunal. This is of all proof the most satisfactory and convincing.” 1 Best, Ev. (Morgan's Ed.) 307. The old writers often speak of such evidence, and in Hale, P. C. 633, 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 Tayl. Ev. § 512. An American author, discussing the subject, says: “The injured member may be exhibited to the jury.” Abb. Tr. 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 Cent. Law J. 3. Henry Wade Rogers, in an article entitled “Profert of the Person,” also discusses the subject, and collects many authorities, all agreeing that exhibitions of injuries are not improper. 15 Cent. Law J. 2. Cases on the general subject are also collected in Thurman v. Bertram, 20 Alb. Law J. 151. In Osborne v. City, 32 Fed. Rep. 36, 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. Railroad Co., 47 Iowa, 375;Mulhado v. Railroad Co., 30 N. Y. 370, and note; State v. Wieners, 66 Mo. 29. The principle has been asserted in many cases by this court. 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 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. Rep. 827,-but these cases form an exception to the general rule. In those cases, the question was whether the personal appearance of a party could be considered by a 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 form them, for we think they are distinguishable from our other cases, as well as from the present case. As said of Robinius v. State, 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 question; 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 assists in determining the character of one of the facts in the case.” Car Co. v. Parker, supra. To what was there said we may add that here the exhibition of the injured member affects only the extent and character of the injury, which is only a single fact in the case; while, in a case where the decision depends upon the age of a party, the opinion of the jury upon inspection...