Van House v. Canadian Northern Railway Co.

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. Accompanied by Mr. and Mrs. Thurston and their children, plaintiff boarded the train at Beaudette 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 eye witness. 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 plain — 60 — tiff or tbe steps, called to ber to step back, told ber be would stop tbe train, and got upon tbe lowest step, grasping tbe handholds; that, instead of letting bim pass, sbe cam© on quickly; that be lost bis grip upon one of tbe bandbolds and one of bis feet got off tbe step; and that plaintiff fell off, and be immediately pulled the cord and stopped tbe train. In tbe main, be is corroborated by tbe assistant superintendent. It would serve no useful purpose to make a more extended statement of tbe evidence. In our opinion it would support a finding either way with respect to tbe maimer in which plaintiff fell. Sbe was an elderly woman weighing- over 200 pounds. It is not easy1 to suppose that tbe brakeman pulled ber off while tbe train was in motion, but we cannot say that reasonable men would not be warranted in concluding that this is what happened. Tbe motion for judgment was properly denied, and so was tbe motion for a new trial unless there were errors of law prejudicial to defendants. Tbe nature and extent of plaintiff’s injuries were important issues. In June, 1921, sbe was taken in an automobile from ber borne in Graceton to Warren, Minnesota, where sbe was examined by Dr. Bratrud, who subsequently gave testimony in ber behalf. In connection with tbe examination, X-ray photographs were taken of tbe lower portion of ber spine. Basing bis testimony in part upon tbe showing made by tbe X-ray plate, Dr. Bratrud gave it as bis opinion that plaintiff bad sustained a compressive fracture of tbe fifth lumbar vertebra and, as a consequence, would suffer more or less pain for tbe remainder of ber life. In tbe course of bis cross-examination be was asked to produce tbe plates and answered that he bad left them at Warren, 150 miles more or less from tbe place of trial. Complaint is made because tbe court denied defendants’ motion for a continuance until tbe plate could be gotten and examined by defendants’ medical experts, and their subsequent request that plaintiff be required to go to tbe office of a local physician to have another X-ray photograph taken. It is so largely a matter of discretion with tbe trial court to grant or deny a motion for a continuance that this court rarely interferes. Under tbe circumstances mentioned later, tbe denial of tbe motion was not an.abuse of discretion. McAllister v. St. Paul City Ry. Co. 105 Minn. 1, 116 N. W. 917. — 61 — 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 R. 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. 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 abuse of discretion in the denial of the request. Over defendants’ objection, Thurston was permitted to testify that for four years before the accident plaintiff’s health had been good. He was not a physician, but had seen her almost daily during that period. There was no error in the reception of this evidence. Tierney v. Minneapolis & St. L. Ry. Co. 33 Minn. 311, 23 N. W. 229, 53 Am. Rep. 35; Bannister v. George H. Hurd Realty Co. 131 Minn. 448, 155 N. W. 627; Cin. Ry. Co. v. Nolan, 161 Ky. 205. Two physicians who had examined plaintiff were asked to give their opinion as to whether “her story of her ailment” or the symptoms of injury she manifested were feigned or real, and answered that they believed the pain of which she complained was real. They had testified that they found a point of marked tenderness low on the spine, but no external evidence of injury. Defendants insist that, where there are no marks of injury, it is error to permit a physician — 62 — to express an opinion as to tbe genuineness of a patient's complaints of pain. It was held in a well-considered case that, when a patient complains! of pain following' a fall and there are no indications of physical injury, it becomes a question for experienced physicians to determine whether the pain is real, feigned or imaginary, and. it is competent for them to give an opinion from the general appearance and actions of the patient. Quaife v. Chicago & N. W. Ry. Co., 48 Wis. 513, 4 N. W. 58, 33 Am. Rep. 821. The same conclusion was reached in Harrold v. Winona & St. P. R. Co. 47 Minn. 17, 49 N. W. 389, although in that case there were external evidences of injury. In the present case there was testimony that plaintiff winced whenever pressure was applied at a certain point over her spine. In a minor degree, this was an involuntary manifestation of pain, and, within the rule of the cases above cited, it was competent for the physicians to express an opinion as to whether the pain was real or pretended. The attention of the jury was called to section 4399, Gr. S. 1913, and they were instructed that defendants were negligent in starting the train before the plaintiff got off, but that such negligence was not to be considered unless it was the proximate cause of her injuries. Defendants insist that it could not be a proximate cause in view of plaintiff’s testimony that she did not intend to get off until the train stopped and would have stayed where she was if the brakeman had not pulled her oil. We are of a contrary opinion. If plaintiff’s testimony is true, two acts combined to produce the injury: The setting of the train in motion before she got off, and the brakeman’s act in getting her off after the train was in motion. Defendants were responsible 'for both acts. In combination, they caused plaintiff to fall upon the station platform. Each was a proximate cause of her injury. Palyo v. Northern Pacific Ry. Co. 144 Minn. 398, 175 N. W. 687. Defendants urge that there was no showing that the train was started before passengers had ample time to get off safely. The circumstances made that a question for the jury. Only two of the adult passengers for Graceton had alighted. The other two were in the act of alighting and said they attempted to get off expeditiously. — 63 — This phase of the case falls within the rules announced in Keller v. Sioux City & St. P. R. Co. 27 Minn. 178, 6 N. W. 486. If the accident happened as plaintiff said it did, there was no question of contributory negligence in the case. If the true state of facts was related by the brakeman, the question was in the case. As to that, the jury were instructed that under ordinary circumstances a person who attempts to alight from a moving train is negligent, “but, as in this case, where the train does not stop at the station long enough to permit a person lawfully on board to leave it, then it becomes the duty of the jury to determine from all the evidence surrounding the case whether the plaintiff is guilty of contributory negligence.” Defendants had pleaded contributory- negligence as a defense, but they insist that the quoted portion of the instruction is bad law because it injects the doctrine of comparative negligence into the case. We do not so understand the charge. It is generally held that whether it is negligence per se to get off a moving train depends upon the circumstances. Such is the established rule in this state. The cases are cited in Rauscher v. Payne, 152 Minn. 368, 188 N. W. 1017. Of course the circumstances may be such that the question should not be submitted to the jury. Many courts hold that it is usually a question for the jury to determine whether a passenger is negligent in alighting from a moving train after an insufficient stop. See notes to Hoylman v. Kanawha & M. R. Co. 22 L. R. A. (N. S.) 745; Hayden v. Chicago, M. & G. R. Co., L. R. A. 1915C, p. 182. According to the brakeman, the train had just got under way. Mrs. Thurston had got off safely and plaintiff was following her. He told her he would stop the train. She may or may not have heard and understood him. Her actions indicated that she did not, for she came on quickly and fell. He was in her way but did not stop her. He is not even sure that she came in contact with him. It may be inferred that she thought she could get off safely. Of conrse all this is contrary to her own testimony. But if the jury were convinced that the brakeman’s version was correct, the instruction was proper and the jury might find plaintiff free from negligence which would defeat a recovery. — 64 — When instructing the jury on the subject of damages, the court said the testimony given by the physicians was “entitled to considerable weight.” Citing Moratzky v. Wirth, 74 Minn. 146, 76 N. W. 1032, defendants assert that this was error. It is to be noted that the instruction applied to the physicians who testified for defendants as well as to plaintiff’s physicians, so it would seem that, if there was error, it was neutralized. However, it was immediately followed'by the statement that where the doctors disagree the jury must determine for themselves the value of the testimony, and by a further instruction that the extent of plaintiff’s injuries should be determined by the consideration of all the testimony and not only that of the doctors. The charge as a whole was not a departure from Moratzky v. Wirth, and we think it is not open to serious criticism. The amount of the verdict was $3,000. We hold that it was warranted by the evidence and does not indicate that the jury were actuated by passion or prejudice. We have discussed the principal assignments of error. The others have not been overlooked. All have been vigorously argued by defendants’ counsel. We think the case was fairly tried, is free from prejudicial error, and that there is no substantial basis for the charge that it was trumped up or that the jury returned a verdict out of sympathy for a woman or prejudice against a railroad company. Affirmed.