Van House v. Canadian N. Ry. Co.

• Decision Date: 23 February 1923
• Docket Number: No. 23238.,23238.
• Parties: VAN HOUSE v. CANADIAN NORTHERN RY. CO. et al.
• Court: Minnesota Supreme Court

155 Minn. 57

192 N.W. 493

VAN HOUSE

v.CANADIAN NORTHERN RY. CO. et al.

No. 23238.

Supreme Court of Minnesota.

Feb. 23, 1923.

Appeal from District Court, Beltrami County; B. F. Wright, Judge.

Action by Phebe Van House against the Canadian Northern Railway Company and another. Verdict for plaintiff, and, from an order denying their alternative motion for judgment or new trial, defendants appeal. Affirmed.

Syllabus by the Court

The evidence relative to the cause of plaintiff's fall from a moving train, from which she was about to alight at a station, made the question of defendants' negligence one for the jury.

There was no abuse of discretion in the denial of defendants' motion for a continuance for the failure of a physician, who gave his opinion as to the nature of plaintiff's injuries, to produce X-ray plates which he took into consideration in giving his opinion.

Neither was there an abuse of discretion in the denial of defendants' request that plaintiff be required to have another X-ray picture taken.

It having been shown that a witness, not competent to testify as an expert, had seen plaintiff almost daily for four years, it was proper to permit him to testify that her health was good before she was injured.

When a patient complains of pain after an accidental injury of which there are no external indications, it is competent for a physician to give his opinion as to whether the pain is real, feigned, or imaginary, basing his opinion on the actions and appearance of the patient.

The jury might properly find that starting the train while plaintiff was alighting was a proximate cause of an injury she sustained, notwithstanding the fact that she testified she was injured because the brakeman pulled her off while the train was in motion. Each of two acts which combine to produce an injury may be a proximate cause of the injury.

Under the evidence, the court did not err in instructing the jury that, where a train does not stop at a station long enough to allow passengers to alight safely, and a passenger is injured while in the act of getting off after the train is in motion, it is for the jury to say whether the act of the passenger was negligent.

There was sufficient evidence to support a finding that such act was not negligent.

Considering the charge as a whole, there was no prejudicial error in instructing the jury that the testimony of the physicians as to the nature and extent of plaintiff's injuries was entitled to considerable weight.

The verdict was not excessive. Hector Baxter, of Minneapolis, Geo. E. Ericson, of Spooner, and W. E. Rowe, of Crookston, for appellants.

Middleton & Middleton, of Baudette, for respondent.

LEES, C.

Plaintiff, a passenger on one of defendants' trains, was injured on March 21, 1921, while alighting from the train. She brought this action, charging defendants with negligence, and recovered a verdict. Defendants have appealed from an order denying their alternative motion for judgment or a new trial.

[1] 1. Accompanied by Mr. and Mrs. Thurston and their children, plaintiff boarded the train at Baudette to go to Graceton in this state. When the train arrived at Graceton, Thurston got off first. As his wife, followed by plaintiff, was getting off, the train began to move. Mrs. Thurston got off safely, but plaintiff fell or was thrown from the steps of the day coach and was injured. She testified that the brakeman seized her arms, said ‘Come on,’ and pulled her from the steps, and she is corroborated by Mrs. Thurston and one of the children. She is contradicted by the brakeman and by defendants' assistant superintendent, who was an eyewitness.

The brakeman testified that when the train stopped he stood near the vestibule of the day coach and saw a woman and then a man get off; that the conductor had not told him and he did not know there were passengers for Graceton; that, seeing no one following the man and woman who got off, he went forward to the baggage car; that the conductor asked him if it was all right to go, that he answered, ‘Yes,’ and the train started; that, as he stood on the station platform, he saw Mrs. Thurston step off the day coach, and ran back and discovered plaintiff on the steps, called to her to step back, told her he would stop the train, and got upon the lowest step, grasping the handholds; that, instead of letting him pass, she came on quickly; that he lost his grip upon one of the handholds and one of his feet got off the step; and that plaintiff fell off, and he immediately pulled the cord and stopped the train. In the main, he is corroborated by the assistant superintendent. It would serve no useful purpose to make a more extended statement of the evidence. In our opinion it would support a finding either way with respect to the manner in which plaintiff fell. She was an elderly woman, weighing over 200 pounds. It is not easy to suppose that the brakeman pulled her off while the train was in motion, but we cannot say that reasonable men would not be warranted in concluding that this is what happened. The motion for judgment was properly denied, and so was the motion for a new trial, unless there were errors of law prejudicial to defendants.

[2] 2. The nature and extent of plaintiff's injuries were important issues. In June, 1921, she was taken in an automobile from her home in Graceton to Warren, Minn., where she was examined by Dr. Bratrud, who subsequently gave testimony in her behalf. In connection with the examination, X-ray photographs were taken of the lower portion of her spine. Basing his testimony in part upon the showing made by the X-ray plates, Dr. Bratrud gave it as his opinion that plaintiff had sustained a compressive fracture of the fifth lumbar vertebra and, as a consequence, would suffer more or less pain for the remainder of her life. In the course of his cross-examination he was asked to produce the plates, and answered that he had left them at Warren, 150 miles more or less from the place of trial. Complaint is made because the court denied defendants' motion for a continuance until the plates could be gotten and examined by defendants' medical experts, and their subsequent request that plaintiff be required to go to the office of a local physician to have another X-ray photograph taken. It is so largely a matter of discretion with the trial court to grant or deny a motion for a continuance that this court rarely interferes. Under the circumstances mentioned later, the denial of the motion was not an abuse of discretion. McAllister v. St. Paul City R. Co., 105 Minn. 1, 116 N. W. 917.

Whether the court should have required plaintiff to submit to the taking of another X-ray photograph is a question not free from doubt. There is little authority on the subject. Such as we have found is to the effect that trial courts have broad discretionary powers in this regard. Wittenberg v. Onsgard, 78 Minn. 342, 81 N. W. 14,47 L. R. A. 141;Boelter v. Ross Lbr. Co., 103 Wis. 324, 79 N. W. 243;Dean v. Wabash Rd. Co., 229 Mo. 425, 129 S. W. 953;State ex rel. Carter v. Call, 64 Fla. 144,59 South. 789,41 L. R. A. (N. S.) 1071; Cin. Ry. Co. v. Nolan, 161 Ky. 205, 170 S. W. 650. At the instance of defendants, plaintiff had been requested to submit and had submitted to a physical examination by four doctors, two of whom testified in her behalf and two in defendants' behalf. None of them said they were unable to form an opinion as to the nature or extent of her injuries without an X-ray examination. Undoubtedly they would have had a better foundation for their opinions if they had seen X-ray plates. It was within the power of the court to grant defendants' request, for it is a matter of common knowledge that the art of taking X-ray photographs has been so developed that danger or serious inconvenience to the patient no longer attends their taking. But it does not follow that a court has no discretion in acting on such a request. Under all the circumstances, we cannot say that there was an...