The Atchison v. Palmore

• Decision Date: 06 February 1904
• Docket Number: 13,507
• Court: Kansas Supreme Court
• Parties: THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY v. HERSCHELL PALMORE

75 P. 509

68 Kan. 545

THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY v. HERSCHELL PALMORE

No. 13,507

Supreme Court of Kansas

February 6, 1904

Decided January, 1904.

Error from Sumner district court; JAMES LAWRENCE, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. EVIDENCE--Secondary Proof Admissible. A card five or six inches square, tacked to the end of a wooden railway tie in a pile of ties loaded in a box car, discovered by a laborer engaged in unloading the ties for final use, bearing the printed words "Arkansas & Texas Tie Company," and the written words "creosote-treated ties," is technically the best evidence of whatever information its inscription imparted; but since it is obvious that a card of that character is not intended to be preserved, and is not likely to be preserved, very slight evidence of its loss is sufficient to authorize parole proof of its contents, and a verdict will not be set aside because no other foundation for secondary proof than the foregoing facts is established.

2. EVIDENCE--Inscriptions--Notice to Party to be Charged Must be Shown. Before inscriptions upon a card of the character described can be offered in evidence as an admission of the truthfulness of their recitals, or as an admonition concerning the character of the ties, it must be made to appear that the party to be charged made the admission or had notice of the warning.

3. PRACTICE, DISTRICT COURT--Personal Injuries--Personal Examination Granted. In an action for damages for a negligent injury to the eyes, claimed to be permanent, a timely request for an expert physical examination of the injured organs, in the usual and ordinary manner, should be granted, although involving the use of drugs for dilating the pupils of the eyes; subject, however, to the limitation that the examination does not produce serious discomfort or any deleterious consequence.

A. A. Hurd, and O. J. Wood, for plaintiff in error.

W. W. Schwinn, for defendant in error.

BURCH J. All the Justices concurring.

OPINION

BURCH, J.:

The plaintiff recovered a judgment for damages against the defendant, resulting from personal injuries claimed to have been received by him while in the railroad company's employ. He charged that the defendant sent him into a box car to unload wooden ties which had been prepared for use by immersion in creosote, a virulent poison, the natural effect of which is to destroy the tissues of the human body with which it may come in contact, and that in handling the ties a fine, light dust which had accumulated upon them and which had become impregnated with the creosote was disseminated in the air and into his eyes, by means of which they were badly burned and his vision was permanently impaired. On the trial, the only evidence offered to prove that the ties had been treated with creosote, or that the defendant had any knowledge of the fact that they had been so treated, was the following:

"I got in to unload the ties, and the only place for me to work was to get behind that pile of ties and shove them out; the other places were filled up; I was told to get into this separate car; the rest of my gang went to another car, all except one man, and I went to shove these ties out; there was dry stuff on top of the ties blew into my eyes and burned my eyes for fifteen minutes, so that I had to stop work for about that long, and I went to the door, and as I went to the door, after I got so that I could see again, I saw on the end of the ties a card about five or six inches square"-- . . .

"Q. Now, you may tell what you saw, Herschell? A. I saw a card; at the heading of the card was printed, says 'Arkansas & Texas Tie Company;' in indelible blue pencil was marked 'creosote-treated ties.'

"You say the card was printed on it 'Arkansas & Texas Tie Company'? A. Printed at the top, the heading of the card, and in blue pencil was marked 'creosote-treated ties.'

"Q. Where was the card? A. It, was tacked on the end of a tie about the middle of the pile on that end." . . .

"Q. And that was on one tie? A. One tie, about the middle of the car."

The railroad company insists that the card itself should have been produced or accounted for. In strictness the card would have furnished the best evidence of whatever information its inscriptions imparted. Its affixture was so slight and temporary that it was removable without effort. It was easily portable and preservable, and its description falls within that of a private document best provable by production. But inasmuch as the card was casually discovered by a laborer when unloading the ties for final use, and inasmuch as it is apparent that the card was not intended to be and was not likely to be preserved, only very slight evidence was required to show its loss, and that is sufficiently furnished by the very statement of the circumstances, so that a verdict should not be overturned because a foundation for secondary proof was not sufficiently established.

A more serious objection to the proof of the language of the card is that the defendant was not shown to be cognizant of it or privy to it in any way. The card could be important only as an admission of the truthfulness of its recitals or as an admonition concerning the character of the ties. Without some proof that the company made the one or had due information of the other it could not be bound. The fact that the plaintiff found the card tacked to the ties was wholly inadequate for either purpose. Any stranger to the company might have placed it there; and if it were affixed without the authority of the officers or agents of the company, it was nothing more than the declaration of the person doing so, and of no binding effect without proof of facts showing it was intended as a means of conveying information concerning the character of the ties, and that the officers or agents of the company were, or should have been, apprised of it in time to notify the plaintiff. Unsupplemented as the evidence stood, it was not only insufficient to establish a liability on the part of the company, but it should have been stricken out.

Before the trial began the defendant made a request for an expert physical examination of the plaintiff's eyes in the usual and ordinary manner. No objection was made to the time or form or propriety of the request. On behalf of the plaintiff, it was stated that he consented that experts might examine his eyes by inspecting them, but that he protested against the court permitting experts or anybody else to put drugs into his eyes for the purpose of dilating them. No reason whatever for this protest was vouchsafed. On the part of the defendant, it was suggested that in no instance could a proper examination of the eye be made without dilating certain of its parts, and the request was made that this feature of the examination be left to the experts themselves. Thereupon the court made the following order:

"The plaintiff by his consent may subject himself to have his eyes examined, but the court will not permit any drugs to be used in the examination without the consent of the plaintiff."

On the trial the plaintiff himself testified to a great destruction of his eyesight. Two physicians produced by him detailed the results of superficial observations of the eyes and pronounced his vision to be permanently impaired. One of them was twenty-five years of age, had been practicing medicine but eighteen months, and had been without eye practice except in a clinical way connected with his college work. The other was a physician of experience, but he was not interrogated concerning any special qualifications he might possess for the diagnosis of cases of this character. Two physicians called by the defendant stated they had inspected the plaintiff's eyes and were able to describe the condition of the outer tissues, but they united in asserting that no superficial examination could discover the facts or test the truthfulness of the plaintiff's statements; that the true condition of his eyes could only be ascertained by an ophthalmoscopic examination of their deeper structures; that a dilation of the pupils by appropriate drugs for that purpose was essential, and that such was the usual and ordinary method of examining eyes by all specialists.

Upon the submission of the cause the jury returned the following remarkable special findings:

"Ques. If you find for plaintiff, what do you allow him for loss of time in the past? Ans. Nothing.

"Q. If you find for plaintiff, what do you allow him for loss of time in the future? A. Nothing.

"Q. If you find for plaintiff, what do you allow him for pain and suffering in the past? A. Nothing.

"Q. If you find for plaintiff, what do you allow him for prospective pain and suffering? A. Nothing.

"Q. If you find for plaintiff, what do you allow him for mental pain and anxiety? A. Nothing.

"Q. If you find for plaintiff, what do you allow him for loss of ability to earn a livelihood? A. Nothing.

"Q. If you find for plaintiff, what do you allow him for permanent injuries? A. $ 5000."

If therefore, the ruling of the court upon the application for an examination of the plaintiff's eyes was erroneous, it was not cured by any subsequent circumstance...