Lane v. Spokane Falls & Northern Railway Co.

The opinion of the court was delivered by Gordon, C. J. Respondent was a passenger on appel — 120 — lant’s train between Spokane in tbe state of Washington and Bossland, British Columbia, and sned to recover damages for injuries alleged to have been sustained while such passenger, as a result of appellant’s negligence. In the lower court, prior to the commencement of the trial, defendant made an application for an order directing that the plaintiff be examined by medical experts appointed by the court, for the purpose of ascertaining the nature, character and extent of plaintiff’s injuries. The court denied the application, and the main question for determination upon this appeal is whether the courts of this state have the power to compel one who sues to recover damages for injuries to his person to submit to such an examination. The question’is a very important one and is presented for the first time in this court. Upon the question the courts of the country are not agreed. In Iowa, Uebraska, Kansas, Wisconsin, Alabama, Arkansas, Ohio, Michigan, Georgia, Minnesota and Missouri it has been held that the court possesses the inherent power to make such an order. Schroeder v. Chicago, R. I. & P. R. Co., 47 Iowa, 375; Stuart v. Havens, 17 Neb. 211 (22 N. W. 419); Sioux City & P. R. Co. v. Finlayson, 16 Neb. 579 (20 N. W. 860); Atchison, T. & S. F. R. R. Co. v. Thul, 29 Kan. 466; White v. Ry. Co., 61 Wis. 536 (21 N. W. 524) ; Alabama G. S. R. R. Co. v. Hill, 90 Ala. 71 (8 South. 90); Sibley v. Smith, 46 Ark. 275; M. & N. Turnpike Co. v. Baily, 37 Ohio St. 104; Graves v. City of Battle Creek, 95 Mich. 266 (54 N. W. 757) ; Richmond & D. R. R. Co. v. Childress, 82 Ga. 719 (9 S. E. 602); Hatfield v. St. Paul & D. R. Co., 33 Minn. 130 (22 N. W. 176) ; Owens v. Kansas City, etc., R. R. Co., 95 Mo. 169 (8 S. W. 350). While in Illinois, Hew York, Indiana and the United States supreme court the power is denied. Peoria, etc., Ry. Co. v. Rice, 144 Ill. 227 (33 N. E. 951) ; Roberts v. Ogdensburgh & L. C. R. R. Co., 29 Hun, 154; Pennsyl — 121 — vania Co. v. Newmeyer, 129 Ind. 401 (28 N. E. 860) ; Union Pacific R. R. Co. v. Botsford, 141 U. S. 250 (11 Sup. Ct. 1000). It is said that it is abhorrent to the principles of liberty to compel a party to submit to such an examination; that it invades the inviolability of the person, is an indignity involving an assault and a trespass, and an impertinence to which a modest woman would not consent. Courts should not sacrifice justice to notions of delicacy, and knowledge of the truth is essential to justice. The attainment of justice in the courts is of far greater importance than any merely personal consideration. ' A witness is frequently required to answer questions which shock modesty and offend the sense of delicacy. The demands of justice not infrequently occasion private inconvenience and annoyance. “ Her delicacy and refinement of feeling, though of course entitling her to the most considerate and tender treatment consistent with the rights of others, cannot be permitted to stand between the defendant and a legitimate defense against her claim of a large sum of money. When it becomes a question of possible violence to the refined and delicate feelings of the plaintiff on the one hand and possible injustice to the defendant on the other, the law cannot hesitate; justice must he done.” Alabama G. S. R. R. Co. v. Hill, supra. In the case at bar the respondent is a voluntary actor. She brings the suit and, as said by the supreme court of Georgia in Richmond & D. R. R. Co. v. Childress, supra: “ WTien a person appeals to the sovereign for justice, he impliedly consents to the doing of justice to the other party, and impliedly agrees in advance to make any disclosure which is necessary to be made in order that justice may be done.” It is to be presumed that, in exercising this power, the trial court will always see that only proper physicians or — 122 — surgeons — and, -where possible, wholly disinterested ones— are appointed to conduct the examination, and the expense of such examination should be borne by the party requesting it. Oare should be exercised to avoid all unnecessary inconvenience and annoyance to the plaintiff, and, when desired, it should be made in the presence of the counsel and friends of the party to be examined, and the trial court must be free to exercise that sound discretion which the-nature of the case and the ends of justice may require. In the present case, we think the application was seasonable -and a proper one, and we perceive no reason why it should have been denied, unless, as asserted by appellant’s counsel, the trial court was of the opinion that it had no power to make the order. If such was the reason for refusing the order, then it is apparent that the court exercised no discretion, and the case affords no ground for our refusal to reviewits action. Such an order, when granted, will operate to stay the suit until its provisions are complied with. As is said by Justices Brewer and Brown, dissenting in Union Pacific Ry. Co. v. Botsford, supra: “ It is not necessary, nor is it claimed, that the court has power to fine and imprison for disobedience of such an order. Disobedience to it is not a matter of contempt. It is an order like those requiring security for costs. The court never fines or imprisons for disobedience thereof. It simply dismisses the case, or stays the trial until the security is given.” Authority of courts of divorce to compel a party to submit to a physical examination by physicians or surgeons appointed by the court has never been doubted. Le Barron v. Le Barron, 35 Vt. 365; Devanbagh v. Devanbagh, 5 Paige, 554. But it is said by the majority in Union Pacific Ry. Co. v. Botsford, supra, that the reason for the exercise of such an authority in divorce actions is “the interest which the — 123 — public as well as the parties have in upholding or dissolving the marriage state.” But will it be said that the public has no interest in the attainment of justice between individuals? The admission that the court has power to make the order whenever it is deemed requisite to ascertain the fact of incapacity in a divorce action seems to us an argument in favor of the existence of the power to make such an order in the present case. It exists by implication, and may be exercised in either case, whenever the demands of justice require it. Actions of this character have, in recent years, become so numerous that the question is of far greater importance than it could possibly have been twenty-five years ago, and it is not surprising that most of the cases in which the question has arisen or is discussed at all are of recent origin. In our state, counties, cities and other municipal corporations are liable for negligence resulting in injury to the person, to the same extent as private corporations and individuals; Kirtley v. Spokane County, 20 Wash. 111 (54 Pac. 936) ; Sutton v. Snohomish, 11 Wash. 24 (39 Pac. 273) ; and it becomes of the utmost importance that the question be determined with due regard for the public welfare. '' The common law grew with society, not ahead of it. As society became more complex, and new demands were made upon the law by reason of new circumstances, the courts originally, in England, out of the storehouse of reason and good sense, declared the 'common law.’ But since courts have had an existence in America, they have never hesitated to take upon themselves the responsibility of saying what is the common law, notwithstanding current English decisions, especially upon questions involving new conditions. . . . And we understand . that where there are no governing provisions of the written laws, the courts ... of this state, are, in all matters coming before them, to endeavor to administer justice according to the promptings of reason and common sense, which are the cardinal principles of the — 124 — common, law.” Sayward v. Carlson, 1 Wash. 29 (see pp. 40, 41). In concluding upon this question we adopt and indorse the view expressed in the dissenting opinion in Union Pacific Ry. Co. v. Botsford, supra, “that a party who voluntarily comes into court alleging personal injuries, and demanding damages therefor, should permit disinterested witnesses to see the nature and extent of those injuries in order that the jury may be informed thereof by other than the plaintiff and his. friends; and that compliance with such an order may be enforced by staying the trial, or dismissing the case.” The conclusion we have reached upon this question disposes of the appeal, but, in view of the new trial which must occur, we deem it necessary to notice other questions which may arise thereon. From the evidence in the case it appears that when the train upon which plaintiff was a passenger arrived at the town of Horthport, a distance of 140 miles from Spokane, the engine was uncoupled and taken by the fireman up the track a short distance, for the purpose of getting water, the engineer leaving the engine to get his dinner. It appears that at that point time and opportunity are afforded passengers to procure dinner before proceeding on the journey. In backing the engine down to connect it with the train, it was permitted to collide with the cars with such force as to throw the plaintiff, who was standing in the aisle of one of the coaches, to the floor, causing the injuries of which she complains. At the trial the defendant introduced witnesses, who testified that the engine was a standard locomotive passenger engine and in first class condition; that it had been inspected at Spokane prior to going out with the train in question; that it was equipped with all modern appliances for starting and stopping; that the fireman who was on the engine at the time of the accident, was a competent engineer as well as fireman and — 125 — had had some experience in running a switch engine; that from the water tank to where the coaches were standing the engine was permitted to drift, on a down grade, at a rate of from fire to ten miles an hour; that when within the usual, proper and a sufficient distance from the cars to enable the engine to be slowed down for the coupling, the fireman applied the air brakes; that, they proving-insufficient under the ordinary application of air, the full volume of air, or what is termed the “emergency pressure,” was turned on, and that, too, proving ineffectual to stop or impede the engine, he thereupon reversed, but was unable to stop the engine in time to prevent the collision which occurred. An examination disclosed that a nut or pin in the connecting rod had broken or dropped out, rendering it impossible to apply the air brakes, and appellant contends that the collision was the result of unavoidable accident. Upon this theory, the appellant asked for an instruction directing a verdict in its favor, and assigns as error the court’s refusal to give it. In support of this assignment, it is contended that a railroad is not an insurer of the safety of its passengers, which may be conceded; that it owes simply the duty of exercising the utmost care, skill, prudence and foresight in the conduct of its business, which may also be accepted as the measure of its duty in this regard. It also insists that the evidence which was introduced upon its own part, and uncontradicted, shows that prior to, and at the time of, the accident it had used, and was using, such care, skill, prudence and foresight. But concerning this question we think the court could not, as a matter of law, assume that the conditions claimed by the appellant were established by the evidence introduced. It was for the jury to say whether or not the inspection was sufficient and adequate; whether or not the fireman was a suitable and competent person to have the conduct and management of the engine — 126 — under such, circumstances; whether or not it was negligence for the engineer to leave the engine intrusted to the care of the fireman under such circumstances; whether or not, if the fireman had been a competent engineer, he would have been equal to the emergency which presented itself when it became apparent that the brakes were not in working order, and could have stopped the engine and prevented the collision. Then, too, witness Luce, who was conductor of the train and a witness for appellant,' says that he saw the engine approaching to make the coupling; that at that time he was standing between the engine and waiting room on the platform, ten or fifteen feet from the engine. The train consisted of a baggage car and three coaches. The brakes were set on the train up to the time the engine was coupled on. “ I saw this engine as it approached for the purpose of making the coupling; this was a few minutes before the departure of the ISTelson train. I saw the coupling when it was made and saw the engine as it approached the train for the purpose of making the coupling. Mr. Ohoat (the fireman') was operating the engine at the time. As he backed down to couple on he was coming a little faster than he should have been, of course, to make the coupling, and I heard him try to set the brake — that is, I heard the air escape as it does always in applying the brake,- — about probably two hundred feet and possibly two hundred and fifty before they came to the car, and he got along about fifty or one hundred feet further, and I heard him apply the air again, and very soon after that, almost immediately, I heard him apply the air full force, which is.called the emergency, and yet she didn’t slack up as he intended, I suppose, she should, and he struck the head end of -the baggage ear.' I didn’t see him reverse the engine, but I know she was reversed when she struck, as she immediately started forward.” Upon the testimony of this witness, the jury might have considered that the engine was permitted to approach the — 127 — train at a greater rate of speed than prudence justified. We think the evidence made a case for the jury, and the instruction was properly denied. There was no error committed in the giving of instruction number six, which withdrew from the jury certain items of damage which were abandoned at the trial, and the computation made by the court was correct, under the pleadings. hTor did the court err in refusing defendant’s requests for instructions numbered one and two. It appears that Drs. Bussell and Oatterson had been consulted by plaintiff in their professional capacity .as physicians, and had made physical examinations of the plaintiff, for the purpose of determining her injuries. At the trial the defendant called them as witnesses', and, upon plaintiff’s objection, the court refused to permit them to testify to any information acquired on such examinations. By instructions one and two, which were refused, the court was asked to tell the jury in effect that they might infer from plaintiff’s refusal to consent to the doctors testifying that their testimony, if given, would have been unfavorable to plaintiff’s cause. We think the defendant was not entitled to have these instructions given. The court correctly ruled that these gentlemen could not, without plaintiff’s permission, give testimony as to any information obtained in their professional capacity, and, if the plaintiff had the legal right to have this testimony excluded, she could exercise that right without making it the subject of comment for the j^y. We think that the question raised by the assignment of error based upon the refusal of the court to give instruction number three, as requested, becomes unimportant by reason of our conclusion in regard to the power of the court to .order an examination in a proper case. Assignments numbered nine and ten are based upon a — 128 — refusal of the court to tell the jury, as a matter of law, that the respondent was guilty of contributory negligence because she was standing in the aisle of the car at the time the collision occurred. We think that to have given these instructions would have been gross error. Railroad Company v. Pollard, 22 Wall. 341; Carroll v. Burleigh, 15 Wash. 208 (46 Pac. 232) ; Bedford v. Spokane Street Ry. Co., 15 Wash. 419 (46 Pac. 650) ; McQuillan v. Seattle, 10 Wash. 464 (38 Pac. 1119, 45 Am. St. Rep. 799). Because of the error above pointed out, the judgment is reversed and the cause remanded for further proceedings in conformity herewith. Dunbar and Anders, JJ., concur. ■