St. Louis Bridge Co. v. Miller

• Decision Date: 04 November 1891
• Citation: 28 N.E. 1091,138 Ill. 465
• Parties: ST. LOUIS BRIDGE CO. v. MILLER.
• Court: Illinois Supreme Court

138 Ill. 465

28 N.E. 1091

ST. LOUIS BRIDGE CO.

v.MILLER.¹

Supreme Court of Illinois.

Nov. 4, 1891.

Appeal from appellate court, fourth district. Affirmed.

Action on the case by Emory Millen against the St. Louis Bridge Company to recover damages for personal injury. Plaintiff obtained judgment, which was affirmed by the appellate court. Defendant appeals.

G. & G. A. Koemer, for appellant.

B. H. Canby and Martin D. Barker, for appellee.

BAILEY, J.

This was an action on the case brought by Mrs. Emory Miller against the St. Louis Bridge Company to recover damages for a personal injury received by the plaintiff while walking along one of the approaches to the defendant's bridge at East St. Louis. The St. Louis bridge proper terminates at the water's edge at East St. Louis, and from that point two iron bridges, called ‘approaches,’ lead gradually down towards Fourth street On each of these approaches is a wagon road 18 or 20 feet wide, and on each said of such wagon road is a foot-path 6 or 7 feet wide. The plaintiff, on the 25th day of September, 1889, having paid to said bridge company the required toll or fare, walked across said bridge from St. Louis, and when she was walking along one of the footways of the north approach a drove of mules passed by, going to East St. Louis. After passing her, they became frightened, and stampeded, and turned and ran up the approach towards her, and three or four of them crossed into the footway where she stood clinging to the outside railing, and ran against her, squeezing and crushing her against the railing, thereby inflicting upon her the injuries of which she complains. The negligence charged in the plaintiff's declaration is, in substance, the failure on the part of the defendant, in constructing its bridge, to provide a suitable rail, banister, or other barrier between the footway used by pedestrains and the roadway provided and used for the passage of teams, wagons, and live-stock over the bridge; and in one count it is averred that, by reason of the absence of such guards, rails, or barriers, it became the duty of the defendant, in the exercise of ordinary care, to make and enforce such rules and regulations for the passage of animals and live-stock over said bridge as would reasonably protect and secure persons crossing the bridge on foot from injury from such animals and live-stock while being driven across the bridge, and said count charges a neglect on the part of the defendant of that duty; and it is averred in each count that, by reason of the negligence of the defendant as charged therein, a drove of mules permitted by the defendant to be driven across said bridge ran against and upon the plaintiff, and pressed and squeezed her so violently against the north railing of the approach as to greatly bruise and injure her, whereby her nervous system was greatly shocked and impaired, causing permanent injury to her spine and kidneys, and an impairment of her eye-sight, etc. A trial before the court and a jury resulted in a verdict and judgment in favor of the plaintiff for $1,800. On appeal to the appellate court of the fourth district, said judgment was affirmed, and by a further appeal the record is now brought to this court for review.

The counsel for the defendant have filed with their briefs prepared for this court copies of the brief used by them in the appellate court, and it appears from those briefs that the questions mainly insisted upon by them in that court were mere questions of fact, in respect to which the judgment of the appellate court is conclusive. The fact that the plaintiff was injured in the manner and to the extent, and that her injuries were of the character and permanency, alleged in the declaration, is not now open to controversy. The same thing must be said of the negligence charged against the defendant, and of the fact that the plaintiff's injuries were caused thereby, and that the plaintiff herself, at the time of her injury, was in the exercise of ordinary care. The errors reviewable here are errors of law, and the only questions of that character to which our attention is called are those which relate to the instructions given to the jury, and to the decision of the court denying the defendant's motion to require the plaintiff to submit to an examination of her person by medical experts.

Considering the last-named question first, we find, upon examination of the record, that several days before the cause was called for trial a motion was filed by the defendant ‘for a rule upon the plaintiff to submit to an examination of her person by medical experts, for the purpose of having the evidence on the trial of the cause as to the extent or the permanency of the injury she claims to have received.’ This motion was supported by an affidavit of one of the defendant's attorneys, which stated simply that, on the day the motion was filed, he advised one of the attorneys for the plaintiff that the defendant desired to have the person of the plaintiff examined by competent experts, learned in the profession of medicine and surgery, for the purpose of ascertaining the extent of the injuries complained of in the plaintiff's declaration, and that said attorney then and there stated to him that the plaintiff would not allow such examination without an order of the court. No other proof was offered in support of said motion, and the court thereupon heard the motion and denied it, and to that decision the defendant's counsel duly excepted. As we view the case, it seems quite unnecessary for us to express any opinion upon the general question as to whether, under proper circumstances, and where it is shown by satisfactory proof that the due administration of justice requires such action, a court may not have the power to compel a plaintiff, in an action for a personal injury, to submit to such personal examination as may be necessary for the purpose of furnishing reliable and satisfactory evidence of the nature, extent, and permanency of the injury complained of. It is sufficient to say that here no case is made calling for the exercise of such power, if it in fact exists. The theory upon which said motion was interposed seems to have been that requiring such examination was a matter of right, and that an order requiring it should be granted as a matter of course. Counsel appear to have labored under the impression that their right to require the plaintiff to submit to an examination by physicians was practically co-extensive with their right to compel her to appear and testify as a witness. As a consequence, no broof whatever was presented showing the necessity or propriety of such examination, or that the ends of justice would in the least be promoted thereby. It was not shown that the defendant had not already at hand abundant testimony to prove the nature and permanency of the plaintiff's injuries, or that she had not already been examined by a sufficient number of competent and trustworthy physicians, whose testimony was available, or that her injuries were of such character that a personal examination would have been likely to throw any light upon the question of their severity or probable permanency. As we have seen, the only fact shown was that the...