Raymond v. Burlington, C. R. & N. Ry. Co.
| Decision Date | 03 December 1884 |
| Citation | 21 N.W. 495,65 Iowa 152 |
| Court | Iowa Supreme Court |
| Parties | RAYMOND v. BURLINGTON, C. R. & N. RY. CO. |
OPINION TEXT STARTS HERE
Appeal from Linn circuit court.
Action to recover for injuries alleged to have been sustained by being thrown from the platform of the defendant's car by reason of the sudden and careless starting of the train, while the plaintiff, as a passenger, was in the act of leaving it at a station. There was a trial to a jury, and verdict and judgment were rendered for the plaintiff. The defendant appeals.S. K. Tracy, for appellant.
Stoneman, Rickel & Eastman, for appellee.
This case is before us upon a rehearing. See 17 N. W. REP. 923. The opinion now filed is not substantially different from the former, except in regard to one instruction, which was held to be erroneous.
1. The defendant introduced as a witness Dr. J. R. Kinney, who testified that he was surgeon of the defendant, and was called to attend plaintiff; that he asked him some questions in regard to his injury; that he wanted information to enable him to judge if the company was responsible; that it was absolutely necessary for him to enable him to obtain a diagnosis, and that all surgeons do that. He also testified that the injury would be more severe if the cars were in motion. The defendant also introduced Dr. H. Ristine, who testified that he was a physician, and was called to assist Dr. Kinney in treating the plaintiff; that he asked the plaintiff how he got hurt, and heard him state how the accident happened, in the presence of Dr. Kinney and Dr. J. M. Ristine. The defendant then asked the witness the following question: “Now I will ask you to state what the plaintiff said, if anything, as to how the accident occurred, and how he got injured?” The plaintiff objected to the question as calling for a professional communication necessary and proper to enable the doctor to exercise his professional functions. In answer to a question by the court the witness stated that he was called as consulting physician, and asked this question for the purpose of ascertaining the facts in order to properly treat him. The court thereupon sustained the objection. The defendant thereupon offered to show by this witness that the plaintiff, in response to questions asked, stated that he stepped off the car while it was in motion, and thus fell and received the injury sued for. The court excluded the evidence, and the defendant assigns the action of the court as error.
The Code, § 3643, provides: “No practicing attorney, counselor, physician, surgeon, minister of the gospel, or priest of any denomination shall be allowed, in giving testimony, to disclose any confidential communication properly intrusted to him in his professional capacity, and necessary and proper to enable him to discharge the functions of his office according to the usual course of practice or discipline.” Dr. Ristine testified that the communication was made by the plaintiff in response to a question asked for the purpose of ascertaining the facts in order to properly treat him; and Dr. Kinney testified that the injury would be more severe if the cars were in motion. In view of this testimony, we think the communication comes within the protection of the statute.
2. The defendant also introduced Dr. J. M. Ristine, who testified that he was a partner of Dr. H. Ristine, and heard the statements made to him. The defendant offered to prove by this witness the same communication sought to be proved by Dr. H. Ristine, and claimed the right to do so upon the ground that the communication was not made to this witness, but merely in his hearing. Manifestly, it would violate the spirit of the statute to permit a physician to disclose a communication made in his presence to his partner.
3. The defendant complains of an instruction given by the court to the effect that it was the duty of the defendant, as a common carrier of passengers, to exercise extraordinary care and caution; but it appears to us that the rule of the instruction is well settled. Sales v. Western Stage Co. 4 Iowa, 547.
4. The court gave an instruction in these words: “You have been instructed that the burden is upon the plaintiff to prove that he was free from contributory...
To continue reading
Request your trial
-
Van Wie v. United States
...221 Iowa 933, 267 N.W. 698; Sutcliffe v. I. S. T. M. Ass'n., 1903, 119 Iowa 220, 93 N.W. 90, 97 Am.St.Rep. 298; Raymond v. B. C. R. & N. R. Co., 1884, 65 Iowa 152, 21 N.W. 495. See, also, Note 24, Iowa Law Review 538, 545. Although the Model Code of Evidence of the American Law Institute ha......
-
Smart v. Kansas City
...been applied to the partner of the attending physician, even though the partner never prescribed for the patient. Raymond v. Burlington Ry. Co., 65 Iowa, 152, 21 N. W. 495; Ætna Life Ins. Co. v. Deming, 123 Ind. 384, 24 N. E. 86, 375. It makes no difference in principle so far as the physic......
-
Smart v. Kansas City
...rule has also been applied to the partner of the attending physician, even though the partner never prescribed for the patient. [Raymond v. Railroad, 65 Iowa 152; Aetna Life Ins. Co. v. Deming, 123 Ind. 384, 24 86.] It makes no difference in principle so far as the physician's disqualificat......
-
Mutual Life Insurance Company of New York v. Owen
... ... consultation relative to his patient's disease and ... treatment was held privileged. In Raymond v ... Burlington, C. R. & N. Rd. Co., 65 Iowa 152, 21 N.W ... 495, a communication to a physician's partner, in his ... presence, was also ... ...