Sidekum v. Wabash, St. Louis & Pacific Railway Co.

• Decision Date: 20 June 1887
• Citation: 4 S.W. 701,93 Mo. 400
• Parties: Sidekum et al. v. The Wabash, St. Louis & Pacific Railway Company, Appellant
• Court: Missouri Supreme Court

4 S.W. 701

93 Mo. 400

Sidekum et al. v. The Wabash, St. Louis & Pacific Railway Company, Appellant

Supreme Court of Missouri

June 20, 1887

Appeal from Buchanan Circuit Court. -- Hon. Jos. P. Grubb, Judge.

Affirmed.

H. S Priest for appellant.

(1) The court erred in refusing to require Mrs. Sidekum to submit to a physical examination by physicians and surgeons, upon proper conditions. Shepard v. Railroad, 85 Mo. 629; White v. Railroad, 20 Cent. Law Jour. 11 Hatfield v. Railroad, 18 A. & E. Ry. Cases, 292 and note. (2) It was error to admit evidence to prove a bad condition of appellant's track at other places than that of the accident. Hipsley v. Railroad, 88 Mo. 348; Roilroad v. Huntley, 38 Mich. 537; Kinney v Railroad, 70 Mo. 243; Maguire v. Railroad, 115 Mass. 239. (3) The court erred in giving the third instruction for the plaintiff, concerning the measure of recovery. Thomas v. Railroad, 20 Mo.App. 485. (4) It was error to permit respondents' attorney, in his closing address, to remark upon the wealth and income of appellant, and impress upon the jury that it could only be punished by assaults upon its property, as he did by saying that "defendant had no stern to be kicked, and no soul to be damned." Brown v. Swineford, 44 Wis. 282, and cases there cited. Tucker v. Hennicker, 41 N.H. 322. (5) The introduction of evidence tending to prove a disreputable track at other points than where the accident occurred; telling the jury, by instruction number three, that, after considering the plaintiff's health before and after the accident, her physical pain and mental anguish, and the pain she was likely to suffer in the future, to also consider "all other circumstances shown in evidence;" and the line of argument pursued by respondents' attorney in his closing address, all tended to impress upon the jury that they were not bound to limit their finding to the actual damages sustained, but might also award exemplary or punitive damages.

Green & Burnes for respondents.

(1) In reply to the first point made by the appellant for a reversal of this case, we cite the following authorities: Shepard v. Railroad, 85 Mo. 629; Lloyd v. Railroad, 53 Mo. 515. (2) As to appellant's second point: Barbour v. McKee, 7 Mo.App. 586; 66 Mo. 77. (3) As to the alleged incompetent argument of plaintiff's Barbour v. McKee, 7 Mo.App. 586; State v. McChesney, 16 Mo.App. 270; Walker v. Martin, 10 Mo.App. 589; Bradshaw v. State, 17 Neb. 147; Bohanan v. State, 18 Neb. 155; Loyd v. Railroad, cited by appellant. (4) The evidence of defective track at places other than that of the accident was admissible under the circumstances of this case. Block's Proofs & Pleading in Accident Cases, sec. 35, and cases cited. (5) The instructions taken together present the law correctly. (6) The verdict was for the right party.

OPINION

Ray, J.

Plaintiffs, who are husband and wife, brought this action in the circuit court of Buchanan county, Missouri, to recover damages for personal injuries to the wife while traveling as a passenger on a freight train of defendant, between the stations of Lathrop or Converse, and Lawson, on the twenty-fourth day of July, 1883. Upon a trial of the cause, plaintiffs obtained a verdict and judgment, in the sum of six thousand dollars, from which defendant has prosecuted this appeal to this court.

The grounds relied on for a reversal of the said judgment, as stated by counsel for defendant, are: (1) That the court erred in overruling its application for a personal physical examination of the wife, the real plaintiff; (2) that the court erred in admitting testimony concerning the bad condition of appellant's track at other places than that where the accident occurred; (3) in giving instruction number three, at plaintiffs' request; and (4) in permitting plaintiffs' attorney, in his closing address, to remark upon things, outside of the record, calculated to excite the prejudices of the jurors, and to deceive and mislead them as to the law concerning the measure of recovery.

In a case involving a similar application to the one mentioned in said first exception, this court expressed the opinion, modifying a previous ruling had in Lloyd v. Railroad, 53 Mo. 509, that, whilst the party had no absolute right to such personal examination, and the court could not compel the party to submit thereto, the court may properly, in the exercise of its discretion, order such an examination to be made, in a proper case, and enforce its order, in the several ways there specified; and that the exercise of its discretion, in that behalf, would not be interfered with by this court, unless manifestly abused. Shepard v. Railroad, 85 Mo. 629. In that case, the court say: "The order asked by defendant was unreasonable, in that it asked that this lady should submit to a personal examination, not by one skilled surgeon, but by at least three." This and other observations and rulings, in said case, would seem to control the application in this case, which was "for an order that said female plaintiff submit her person to an examination of physicians, to be named by defendant, not exceeding four in number." It further appears, in this case, that said motion, having been filed on the day before the trial, was taken up and heard by the court, when the cause was called for trial, on the next day, and that the court denied the motion, at the time, remarking that if, during the progress of the trial, it appeared necessary to ascertain the real condition of plaintiff, and the nature and extent of her injuries, he would then direct an examination by physicians.

The witnesses testifying for plaintiff upon the subject of her health and condition, both before and after the injury on the railroad, were the female plaintiff, Hannah Sidekum, in her own behalf; her stepmother, Mrs. Harrison, and the family physician, Dr. Bane. Omitting consideration of the testimony of the other witnesses, that of Dr. Bane, delivered before the trial judge, who was, we may assume, personally acquainted with him, and knew his reputation as a physician was, in general and substance, that he had practiced in the family of Mrs. Sidekum for twelve years; that he was called to see her immediately upon her arrival in St. Joseph, and found her suffering great pain from introversion or dislocation of the womb; the womb pressing on the bladder; surrounding parts inflamed, and some external bruises, the more serious ones being located on the abdomen and back part of the body; that he attended at her house over two months, seeing her nearly every day; that an abscess formed in two or three weeks after the injury, with a discharge through the soft parts, which had not healed, when he last saw her, some three or four weeks previous to time of giving his testimony; that her condition was much improved; that he did not regard her condition incurable, as it is curable in some cases, but that the probability was that the injury would be permanent; that she was still under treatment, although he was not visiting her at the time of the trial. He also testified that, prior to the accident, she had been sound and healthy; that, in the course of his twelve years...