The Cleveland, Columbus, Cincinnati and Indianapolis Railroad Company v. Newell

• Citation: 3 N.E. 836,104 Ind. 264
• Decision Date: 12 December 1885
• Docket Number: 11,095
• Parties: The Cleveland, Columbus, Cincinnati and Indianapolis Railroad Company v. Newell
• Court: Indiana Supreme Court

3 N.E. 836

104 Ind. 264

The Cleveland, Columbus, Cincinnati and Indianapolis Railroad Company v. Newell

No. 11,095

Supreme Court of Indiana

December 12, 1885

From the Marion Superior Court.

The judgment is affirmed, with costs.

H. H Poppleton, A. C. Harris and W. H. Calkins, for appellant.

B Harrison, C. C. Hines, W. H. H. Miller, J. B. Elam, J. W Gordon and S. M. Shepard, for appellee.

OPINION

Mitchell, J.

This action was brought by Lyne S. Newell against the Cleveland Columbus, Cincinnati and Indianapolis Railway Company, to recover for alleged injuries to his person, suffered while being carried as a passenger from the city of Indianapolis to Bellefontaine, Ohio. When near the place of destination, the coach in which he was seated was thrown from the track in consequence of the breaking of a rail over which it passed. Whether the rail broke because of the prevailing cold weather, or from defects inhering in it or in the roadway at that point, or from the defective manner in which the rail was adjusted in the track, were controverted questions.

The jury returned, in answer to special interrogatories, that the defendant was in fault in not having placed the rail, the breaking of which resulted in the accident, in proper position; that the fish-plates which should have held it in place were not securely bolted, and that the rail itself was defective from wear. They also returned that the road-bed at the place where the broken rail was found was not in every respect in good condition. Other interrogatories were submitted and answered, but, except as already stated, the answers impute no neglect to the defendant.

It is contended that neither the general verdict nor the answers to interrogatories, so far as they inculpate the defendant, are supported by the evidence.

Without detailing the evidence to any extent, it may be sufficient to say, that it at least leaves in some doubt the question of the condition and fitness of the rail which broke. Moreover, the fact that another rail was found broken, only several hours before, at the same place, gave room for an inference that there may have been some defect in the roadway at that point.

In respect to all these matters it was incumbent on the defendant to remove all reasonable inferences of neglect by clear and explicit proof. That the coach was thrown from the track was of itself sufficient to raise a presumption of negligence against the defendant. Public policy requires of the carrier in such cases, that it shall affirmatively show that it had taken all usual and practical precautions, as applied to the careful and capable management of passenger railways, to maintain its track, roadway and appliances for carrying in a safe condition. While its obligation does not rise to the degree of warranting the safety of its track and roadway, the law nevertheless exacts that when an injury occurs to a passenger by an occurrence so unusual and so perilous to human life, it shall make it appear that the utmost practical care and diligence had been observed, and that no degree of care usually and practically applicable to the careful management of like railways would have discovered the defect which probably caused the accident, and thus prevented its occurrence. Bedford, etc., R. R. Co. v. Rainbolt, 99 Ind. 551.

The investigation necessarily involved an inquiry into the fitness and condition of the particular rail, the breaking of which was the immediate cause of the accident. The condition of the roadway at that point also became a proper subject of inquiry. If, in the course of the investigation, facts were developed which left the questions of the condition of the roadbed, or whether the rail was properly adjusted in the track, or whether it was defective from wear, involved in doubt, then, however satisfactory the proof of general diligence may have been, the inference of negligence with respect to the immediate cause of the accident may still have remained.

While it may be conceded that the evidence fully established the defendant's general diligence in the maintenance of its track and appointments, it can not be denied that the rail which was found broken had been taken out of the track before the accident at a point near by because of its want of exact uniformity in height with another to which it was matched. Another rail had broken at the same place on the morning of the accident, and this rejected rail had been put in its place. It can not be said that its fitness for use was in every respect satisfactorily shown; neither can it be said that the condition of the roadway at the place where two rails broke in such quick succession was so definitely established as to repel the inference of probable defect. If it had been the fact, it seems to us it must have been within the power of the company to have shown by persons of skill and experience in railroad management, that the use of a rail of slightly uneven height was a proper and usual thing under the circumstances, or that the condition of the atmosphere was such as to have accounted for the successive breaking of good rails, properly laid on a sufficient roadway.

Upon these points the evidence is not satisfactory, and considering all the evidence, with the presumption which the law raises, we can not say that either the general verdict or the answers to special interrogatories are without support.

The extent of suffering, and the nature and probable permanency of the injuries sustained by the plaintiff, became a subject of inquiry at the trial.

Subsequent to the commencement of the suit, the plaintiff submitted himself to an examination by Dr. Jameson. It may be inferred from the plaintiff's testimony, that the examination was procured for the double purpose of ascertaining the nature and extent of his injuries and of receiving treatment which was prescribed, and also to qualify the physician as a medical witness to represent his condition in the approaching trial. We infer, however, that Dr. Jameson knew of no purpose beyond that of treatment at the time the examination was made.

At the proper time Dr. Jameson was called as a witness on plaintiff's behalf, and in the course of his examination he was asked the following question: "Where did he complain of his injury--where did he say it was?" Over the defendant's objection, the witness answered as follows: "He said he was suffering a great deal of pain and tension in the lower portion of the back--in the lumbar region--across the small of the back." Again, the witness, further on in his testimony, said, in answer to a series of questions: "That he complained of a sensation of numbness in the lower extremities, and those parts of the body below the part that would correspond with the injured part of his spine; and I think he complained, also, of a sense of constriction, but of that I would not be positive."

This ruling of the court is made one of the grounds of the motion for a new trial.

Counsel for appellant insist that exclamations of pain, in order to be admissible in evidence, must be contemporaneous with the alleged injury and the then existing facts, and that they must have been made before sufficient time elapsed to enable the person making them to form plans for future lawsuits.

They insist, further, that they must have been made ante litem motam, not only before suit brought, but before the controversy existed in any form.

In a general sense, and as applicable to a different class of cases, the rule as stated by counsel is approximately correct. Where, however, it becomes important to illustrate the physical or mental condition of an individual, either at the time an injury is received, or from thence to the time of an inquiry as to its severity, effect and nature, we think expressions or declarations of present existing pain or malady, whether made at the time the injury is received, or subsequent to it, are admissible in evidence. Carthage T. P. Co. v. Andrews, 102 Ind. 138, 1 N.E. 364; Town of Elkhart v. Ritter, 66 Ind. 136; Howe v. Plainfield, 41 N.H. 135; Towle v. Blake, 48 N.H. 92; Kennard v. Burton, 25 Me. 39; Hyatt v. Adams, 16 Mich. 180; Elliott v. Van Buren, 33 Mich. 49 (20 Am. R. 668); Brown v. New York Cent. R. R., 32 N.Y. 597; Matteson v. New York Cent. R. R. Co., 35 N.Y. 487; Johnson v. McKee, 27 Mich. 471; Earl v. Tupper, 45 Vt. 275.

Expressions of present existing pain, and of its locality, are exceptions to the general rule which excludes hearsay evidence. They are admitted upon the ground of necessity, as being the only means of determining whether pain or suffering is endured by another. Whether feigned or not is a question for the jury.

Such declarations and expressions are competent, regardless of the person to whom they are made. They are especially competent and of more weight when made to a physician for the purpose of receiving treatment, or to a medical expert who makes an examination at the request of the opposite party, or by the direction of a court, for the purpose of basing an opinion upon as to the physical situation of the person whose condition is the subject of inquiry. Quaife v. Chicago, etc., R. W. Co., 48 Wis. 513 (33 Am. R. 821, 4 N.W. 658); Atchison, etc., R. R. Co. v. Frazier, 27 Kan. 463.

It is only when such declarations assume the form of a narrative of past experience or suffering, or of a relation of the cause and manner of the injury, or where they are made ante litem motam to one not an attending physician or a medical expert under the condition above mentioned, that their admissibility becomes the subject of serious discussion.

Statements of past sufferings and pains, when not made to a medical expert for the purpose of enabling him to form an opinion upon with a...