Statement: "Plaintiff's action is for personal injuries sustained on one of defendant's trains. He was a clerk in the employ of the United States government at the time, and, as such, in charge of mail matter in a postal-car forming part of a passenger train on defendant's railway. The mail was carried by defendant under a contract with the federal authorities. The accident occurred near Pleasant Hill, Mo., November 27, 1886. It will not be necessary to state the pleadings in full. No point is made as to the sufficiency of the petition, except in the particular discussed in the opinion. Plaintiff's evidence tended to show (in addition to the facts above stated) that he was attending to his routine duties in the mail-car when the train of which it formed a part, moving westward at the rate of some 30 miles an hour, collided with a freight train going eastward. Plaintiff was struck by heavy timbers, and pinioned fast amid the wreck. He was afterwards extricated, and found to be seriously hurt. The evidence regarding the extent of his injuries appears more fully in the opinion. It seems that plaintiff, after the accident, was first attended professionally by Dr. Scott for several months. Then he made a change of physicians, Dr. Glancie taking charge of his case. Plaintiff introduced the latter as a witness to prove the nature and extent of his injuries. When the defense was reached, Dr. Scott was offered as a witness; but after a brief examination, from which it appeared that his knowledge of plaintiff's condition was derived while attending him in a professional character as physician, the court (on plaintiff's objection) excluded any disclosures by him of the information so obtained, to which ruling defendant duly excepted. The testimony of defendant was wholly directed at the issue of plaintiff's damages, and tended to contradict that offered on his behalf regarding the extent and permanency of his injuries. The jury returned a verdict for plaintiff for $6,050, upon which judgment was entered. After the proper motions and exceptions, defendants appealed. On the measure of damages, the court instructed the jury as follows: `If you find for the plaintiff, you should assess his damages at such a sum as you may believe, from all the evidence, will be a fair compensation to him for any pain of body or mind, for any loss of earnings, for any expenses necessarily incurred for medical attention, and for any permanent physical disability (if any or either or all such) which you may believe from the evidence the plaintiff has sustained, or will hereafter sustain, by reason of his said injuries, and which you may find from the evidence to have been directly caused by the collision mentioned in the evidence. If you have a sympathy or prejudice in favor of or against either party, you should not allow it to influence you at all in your verdict, but in your verdict you should be guided alone by the evidence and the instructions given you by the court.'"
Opinion of division No. 1: "(1) That plaintiff was riding upon defendant's train, by virtue of some contract or arrangement between defendant and the federal government touching the carriage and care of the United States mail, was clearly established by the testimony. Defendant's contention that in such a situation he should be regarded as its servant we consider too untenable for serious discussion. There was neither allegation nor proof on defendant's part that plaintiff was in its employ in any capacity, and certainly no such inference fairly arises from any of the facts in evidence. This being so, there is no foundation on which to predicate a defense that plaintiff's injury arose from any negligence of fellow-servants. The train operatives were clearly not such as to him. Defendant's duty to him, so far as concerned safe transportation, was as a passenger. Seybolt v. Railroad Co., (1884,) 95 N. Y. 562; Blair v. Railway Co., (1876,) 66 N. Y. 313; Yeomans v. Navigation Co., (1872,) 44 Cal. 71; Collett v. Railway Co., (1851,) 16 Adol. & E. (N. S.) 984; Hammond v. Railway Co., (1874,) 6 S. C. 130. This
point being settled, there remains no basis for defendant's contention that the court erred in refusing an instruction in the nature of a demurrer to the evidence. (2) Defendant urges its exception to the ruling excluding the testimony of Dr. Scott. It is not denied that the questions called for a disclosure of information concerning plaintiff's injuries which Dr. Scott acquired while attending plaintiff as a physician; but the contention is that the evidence was admissible because plaintiff had waived the protection of the statute by offering Dr. Glancie as a witness regarding the same injuries. The language of the statute on the subject is that a physician or surgeon `shall be incompetent to testify concerning any information which he may have acquired from any patient while attending him in a professional character, and which information was necessary to enable him to prescribe for such patient as a physician, or do any act for him as a surgeon.' Rev. St. 1889, § 8925; Rev. St. 1879, § 4017. It is conceded that a physician may be permitted to testify, at the instance of his patient, concerning facts acquired by him in his professional relation; but it does not necessarily follow that, by introducing such a witness, the patient impliedly waives his right to object to every witness that may be recalled by his adversary in relation to the same subject. The ban of incompetency is placed by the statute on certain witnesses. It does not exclude the evidence by reason of its inherent character, but only when given by the persons within its purview. Hoy v. Morris, (1859,) 13 Gray, 519. A party to litigation may be willing to waive the objection of incompetency as to a witness in whom he reposes special confidence, yet insist on it as to another. It has been held in New York, under statutory language somewhat resembling ours, that where a physician, thus declared incompetent, testified at the instance of his patient upon one trial, the party so calling him could not insist on his exclusion as a witness to the same facts at a subsequent trial of that cause. Edington v. Insurance Co., (1879,) 77 N. Y. 564. But that decision furnishes no authority, or even an analogy, to support the position taken by defendant here. Westover v. Insurance Co., (1885,) 99 N. Y. 56, 1 N. E. Rep. 104. In a still later case the court of appeals of that state has announced the same conclusion on the subject of waiver which we have now reached. Hope v. Railroad Co., (1886,) 40 Hun, 438, affirmed, (1888,) 110 N. Y. 643, 17 N. E. Rep. 873. We incline to the opinion that plaintiff, by calling Dr. Glancie to testify in his behalf, merely waived his incompetency for the purposes of the case, but cannot thereby be justly deemed to have assented to the examination of every other witness, pronounced incompetent by the statute, who might possess confidential knowledge on the same general subject. (3) Some objections are made to the rulings on the instructions, which will be noted briefly. As we have already ruled, the facts in evidence, unexplained, gave plaintiff the status of a passenger, so far as concerned his right to safe transit. Starting from this postulate, it follows that there was no error in the instructions given regarding the degree of care towards him devolving on defendant, for they embody the rules of law on that subject recently approved in Furnish v. Railway Co., (Mo.) 13 S. W. Rep. 1044, and therefore need not be reviewed in detail. No evidence was offered by the defendant tending to explain or excuse the collision between its trains, or tending to show any contributory negligence on plaintiff's part. In this state of the case, the instructions regarding defendant's duty to safely carry plaintiff, however viewed, cannot be said to contain any error to the prejudice of defendant's substantial rights upon the merits. Rev. St. 1879, §§ 3569, 3775; Rev. St. 1889, §§ 2100, 2303. Next, the instruction on the measure of recovery is challenged as erroneous because it mentions `loss of earnings' as an element of damage, whereas the petition makes no claim for compensation on account thereof. Loss of earnings is a kind of injury which is not regarded as a necessary consequence of such acts as are complained of here, and therefore is not embraced within the plaintiff's general allegations of damage. It is one sort of special damages, and consequently must in some wise be counted upon to constitute a basis for evidence on the subject. The purpose of this rule...
