Phebe Van House v. Canadian Northern Railway Co.
| Decision Date | 23 February 1923 |
| Docket Number | 23,238 |
| Citation | 192 N.W. 493,155 Minn. 57 |
| Parties | PHEBE VAN HOUSE v. CANADIAN NORTHERN RAILWAY COMPANY AND OTHERS |
| Court | Minnesota Supreme Court |
Action in the district court for Beltrami county to recover $3,000 for injuries received in alighting from defendants' train. The case was tried before Wright, J., who when plaintiff rested denied defendants' motions for directed verdicts and at the close of the testimony denied motions by both parties for directed verdicts, and a jury which returned a verdict for the amount demanded. From an order denying their motion for judgment notwithstanding the verdict or for a new trial, Canadian Northern Railway Company and Canadian National Railways appealed. Affirmed.
Question of railroad's negligence for the jury.
1. The evidence relative to the cause of plaintiff's fall from a moving train from which she was about to alight at a station made the question of defendants' negligence one for the jury.
Continuance denied when physician failed to produce X-ray plates.
2. There was no abuse of discretion in the denial of defendants' motion for a continuance for the failure of a physician, who gave his opinion as to the nature of plaintiff's injuries, to produce X-ray plates which he took into consideration in giving his opinion. Neither was there an abuse of discretion in the denial of defendants' request that plaintiff be required to have another X-ray picture taken.
Testimony of witness concerning health of plaintiff competent.
3. It having been shown that a witness, not competent to testify as an expert, had seen plaintiff almost daily for four years, it was proper to permit him to testify that her health was good before she was injured.
Opinion of physician in reference to complaints of pain.
4. When a patient complains of pain after an accidental injury of which there are no external indications, it is competent for a physician to give his opinion as to whether the pain is real, feigned or imaginary, basing his opinion on the actions and appearance of the patient.
Two acts in combination may be a proximate cause of injury.
5. The jury might properly find that starting the train while plaintiff was alighting was a proximate cause of an injury she sustained, notwithstanding the fact that she testified she was injured because the brakeman pulled her off while the train was in motion. Each of two acts which combine to produce an injury may be a proximate cause of the injury.
Question for jury whether passenger is negligent in alighting from a moving train.
6. Under the evidence, the court did not err in instructing the jury that where a train does not stop at a station long enough to allow passengers to alight safely and a passenger is injured while in the act of getting off after the train is in motion, it is for the jury to say whether the act of the passenger was negligent. There was sufficient evidence to support a finding that such act was not negligent.
Charge as to weight of physicians' testimony not prejudicial.
7. Considering the charge as a whole, there was no prejudicial error in instructing the jury that the testimony of the physicians as to the nature and extent of plaintiff's injuries was entitled to considerable weight.
Verdict of $3,000 not excessive.
8. The verdict was not excessive.
Hector Baxter, George E. Ericson and W. E. Rowe, for appellants.
Middleton & Middleton, for respondent.
Plaintiff a passenger on one of defendants' trains, was injured on March 21, 1921, while alighting from the train. She brought this action, charging defendants with negligence, and recovered a verdict. Defendants have appealed from an order denying their alternative motion for judgment or a new trial.
1. Accompanied by Mr. and Mrs. Thurston and their children, plaintiff boarded the train at Beaudette to go to Graceton in this state. When the train arrived at Graceton, Thurston got off first. As his wife, followed by plaintiff, was getting off, the train began to move. Mrs. Thurston got off safely, but plaintiff fell or was thrown from the steps of the day coach and was injured. She testified that the brakeman seized her arms, said "come on," and pulled her from the steps, and she is corroborated by Mrs. Thurston and one of the children. She is contradicted by the brakeman and by defendants' assistant superintendent, who was an eye witness. The brakeman testified that when the train stopped he stood near the vestibule of the day coach and saw a woman and then a man get off; that the conductor had not told him and he did not know there were passengers for Graceton; that, seeing no one following the man and woman who got off, he went forward to the baggage car; that the conductor asked him if it was all right to go, that he answered, yes, and the train started; that, as he stood on the station platform, he saw Mrs. Thurston step off the day coach, and ran back and discovered plaintiff on the steps, called to her to step back, told her he would stop the train, and got upon the lowest step, grasping the handholds; that, instead of letting him pass, she came on quickly; that he lost his grip upon one of the handholds and one of his feet got off the step; and that plaintiff fell off, and he immediately pulled the cord and stopped the train. In the main, he is corroborated by the assistant superintendent. It would serve no useful purpose to make a more extended statement of the evidence. In our opinion it would support a finding either way with respect to the manner in which plaintiff fell. She was an elderly woman weighing over 200 pounds. It is not easy to suppose that the brakeman pulled her off while the train was in motion, but we cannot say that reasonable men would not be warranted in concluding that this is what happened. The motion for judgment was properly denied, and so was the motion for a new trial unless there were errors of law prejudicial to defendants.
2. The nature and extent of plaintiff's injuries were important issues. In June, 1921, she was taken in an automobile from her home in Graceton to Warren, Minnesota, where she was examined by Dr. Bratrud, who subsequently gave testimony in her behalf. In connection with the examination, X-ray photographs were taken of the lower portion of her spine. Basing his testimony in part upon the showing made by the X-ray plate, Dr. Bratrud gave it as his opinion that plaintiff had sustained a compressive fracture of the fifth lumbar vertebra and, as a consequence, would suffer more or less pain for the remainder of her life. In the course of his cross-examination he was asked to produce the plates and answered that he had left them at Warren, 150 miles more or less from the place of trial. Complaint is made because the court denied defendants' motion for a continuance until the plate could be gotten and examined by defendants' medical experts, and their subsequent request that plaintiff be required to go to the office of a local physician to have another X-ray photograph taken.
It is so largely a matter of discretion with the trial court to grant or deny a motion for a continuance that this court rarely interferes. Under the circumstances mentioned later, the denial of the motion was not an abuse of discretion. McAllister v. St. Paul City Ry. Co. 105 Minn. 1, 116 N.W. 917.
Whether the court should have required plaintiff to submit to the taking of another X-ray photograph is a question not free from doubt. There is little authority on the subject. Such as we have found is to the effect that trial courts have broad discretionary powers in this regard. Wittenberg v. Onsgard, 78 Minn. 342, 81 N.W. 14, 47 L.R.A. 141; Boelter v. Ross Lbr. Co. 103 Wis. 324 79 N.W. 243; Dean v. Wabash R. Co. 229 Mo. 425, 129 S.W. 953; State ex rel. Carter v. Call, 64 Fla. 144, 59 So. 789, 41 L.R.A. (N.S.) 1071. At the instance of defendants, plaintiff had been requested to submit and had submitted to a physical examination by four doctors, two of whom testified in her behalf and two in defendants' behalf. None of them said they were unable to form an opinion as to the nature or extent of her injuries without an X-ray examination. Undoubtedly they would have had a better foundation for their opinions if they had seen X-ray plates. It was within the power of the court to grant defendants' request, for it is a matter of common knowledge that the art of taking X-ray photographs has been so developed that danger or serious inconvenience to the patient no longer attends their taking. But it does not follow that a court has no discretion in acting...
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