Atchison, Topeka & Santa Fé Railroad v. Johns

36 Kan. 769

Opinion

The opinion of thg court was delivered by

Valentine, J.:

The facts of this case, stated briefly, are substantially as follows: On February 6, 1883, the plaintiff, Mrs. Johns, who was then about sixty-three years of age, went to the railroad station at Severy, Greenwood county, along with certain of her friends who were then about to start for Washington territory to make it their permanent home. She went along with her friends to assist them in getting to the railroad train and upon it, and to bid them good-bye. These friends were Mrs. Pitzer, who was also an old lady about the plaintiff’s age, and Mrs. Pitzer’s daughter and son-in-law? and their several children. This station is a union station or depot belonging to the Atchison, Topeka & Santa Fé Railroad Company, and the St. Louis & San Francisco Railroad Company. These two railroads cross each other at that place, at right angles, the Atchison, Topeka & Santa Fé railroad running north and south, and the other railroad running east and west; and the station is situated in the southwest angle formed by this crossing, immediately west of the Atchison, Topeka & Santa Fé railroad, and immediately south of the other railroad. A platform, about 16 feet wide and 195 feet in length, is situated between the station-house and the defendant’s railroad track. This platform at that time was covered with ice, and had been in that condition for several days. The railroad train upon which the plaintiff’s friends expected to travel, and which consisted of an engine, a baggage-car and a passenger-car, was then standing on the defendant’s railroad track, east of the station platform, and headed to the north. The plaintiff bade good-bye to those of her friends who were about to leave, and they, with other friends who did not intend to leave, went into the passenger-car. The plaintiff then stepped back about ten feet from the east edge of the platform, and opposite the coupling between the baggage-car and the passenger-car, and stood there on the platform for the purpose of waiting till the train should start, and to bid her friends a last farewell. There was a waiting-room in the station-house or depot, to which she might have retired if she had so chosen. There were also at that time two or three large trunks, belonging to “drummers,” situated on the platform several feet south and slightly to the east of where the plaintiff was standing, which were to be removed and placed in the baggage-car, which was north and east of where the plaintiff was standing. This platform was slightly inclined downward from the west side to the east side. Three of the company’s servants undertook to remove these trunks. They did not use trucks or any other vehicle or instrument of conveyance, but slid the trunks on the ice. In removing the first trunk, they struck the plaintiff and knocked her down, and in this manner inflicted the injury of which she now complains. The trunk itself was propelled against her. This occurred within five minutes after the time when the plaintiff had bid her friends good-bye. She saw the men removing the trunk, and watched them, not thinking, however, that they would run against her or molest her in any manner; but when they came within about six feet of her, she attempted to move out of their way, but did not succeed in doing so. The evidence did not show whether the men saw her or not until after she fell; but there was nothing to prevent their seeing her if they had looked in that direction. There was plenty of room on the platform, east of where the plaintiff stood, within which the trunk might have been moved without touching her. The only persons near her at the time, except the three men who wei’e moving the trunk, were a friend of the plaintiff, Mrs. Miller, and Mrs. Miller’s little boy.

The case was tried before the court and a jury, and after the plaintiff had introduced her evidence, which tended to prove all the foregoing facts, the defendant demurred to the evidence upon the ground that it did not prove or tend to prove any cause of action; which demurrer the court overruled. No other evidence was introduced. The defendant then presented to the court 41 special instructions for the jury, and asked the court to give them to the jury, all of which the court refused, and gave only its own instructions. The defendant then presented 63 special questions of fact for the jury, and asked the court to submit them to the jury, all of which, except four, to wit, the 2d, 23d, 24th, and 63d, the court did submit to the jury, as requested. The jury found a general verdict in favor of the plaintiff and against the defendant, and assessed the plaintiff’s damages at $4,000, and also gave answers to the foregoing special questions of fact. The defendant then moved for a judgment in its favor upon the special findings of fact, notwithstanding the general verdict; which motion the court overruled. The defendent then moved for a new trial upon various grounds; which motion the court also overruled. The court then rendered judgment upon the verdict and findings of the jury in accordance with the general verdict. Afterward the defendant made a case for the supreme court, and has brought such case to this court and asks for a reversal of the judgment below.

2' sumedto ííavé scope of authority. The first question to be considered in this court is, whether the plaintiff below introduced sufficient evidence to authorize the jury to find in her favor with reference to every essential fact Constituting her cause of action. This question -was raised in the court below by the demurrer to the evidence, by the motion for judgment on the special findings, and also by the motion for a new trial. The plaintiff in error, defendant below, claims that the evidence is insufficient, for the following reasons : (1) There was no evidence tending to prove any culpable negligence on the part of the defendant; (2) there was no evidence tending to prove that the three servants of the defendant who moved the trunk were acting within the scope of their employment; (3) the evidence discloses culpable contributory negligence on the part of the plaintiff below. The first two points we think should be discussed together. Of course the plaintiff below knew the exact condition of the platform and its surroundings, and that the defendant’s servants were moving the trunk toward her, for all these things were in plain view, and she had eyes; but so also did the defendant’s servants know all these things, for they also had eyes, and probably fully as good ones as the old lady had; but if they did not know these things, then they were guilty of culpable negligence in not knowing the same. Presumably they knew that the plaintiff was standiúg on the platform where she stood, and that unless she hurriedly got out of their way they would run against her in moving the trunk in the direction in which they were moving it, and as rapidly as they were moving it on the smooth ice of that platform; but, as before stated, if they did not know the same, they were equally as guilty of negligence in running against the plaintiff, and in knocking her down, as though they had in fact known all about these matters. It was their duty to know these things. The three men who undertook to remove the trunk were a brakeman belonging to that train and two section-foremen at that place, all in the employment of the defendant. They had also all done similar work on several prior occasions; and being on the company’s premises, performing this duty ■ of removing trunks for the defendant in the presence of other employés of the defendant, and having done similar work on prior occasions, it must be 1 ; presumed that they were acting for the defendant, and within the scope of the authority given to them by the defendant.

a' flc?ea?toe,suf' tienegiigence The defendant, then, is responsible for their negligence, and they were clearly guilty of culpable negligence. The question as to whether the plaintiff was guilty of contributory negligence was fairly submitted to the jury, and they found that she was not guilty of any such negligence; and upon the evidence introduced, we think their verdict is correct.

3' riesTcuípalíé contributory Sofsfown.’ As the train upon which the plaintiff’s friends were expecting to depart was soon to start, we do not ;' think that the plaintiff was guilty of any con-tributary negligence in remaining on the platform, where she stood until the train started. She was not necessarily in any person’s way, and such a thing is common at all stations on all railroads. The plaintiff certainly could not be considered as a trespasser upon the company’s premises; and if not, then the defendant and its servants owed her the duty of exercising reasonable and ordinary care and diligence to avoid injury to her. We do not think they exercised any such care or diligence, but really they were guilty of gross negligence. The plaintiff was not standing in a straight line between the place where the trunks lay on the platform and the place on the platform from which they were to be taken into the baggage-car, and the men moving the trunk had to move the same out of a straight line, and up a slightly inclined plane, in order to strike the plaintiff. There was plenty of room on the platform, and in a straight line, within which the trunks might have been moved from where they lay to the baggage-car, without molesting the plaintiff.

The plaintiff in error, defendant below, also claims that the court below committed material error in permitting the following evidence to be introduced, to wit: Mrs. M. D. Thatcher was permitted to testify, over the objections of the defendant, among other things, as follows:

“Well, I only know what Mrs. Johns has told me of her suffering, and I have been called in there as a neighbor. She complained of the misery in her side, and she told me that she suffered a great deal with a numbness and a tingling sensation in her left side, I believe it was; and the other evening I was called over there, and she told me that she was suffering now a great deal with that feeling, and also a depression about her heart, she said, in her left side, and she had sent for the physician, I believe, that evening; and that was some of the symptoms, I believe, that she had; of some kind of depression about her heart, a smothering, I think. . . . Mrs. Johns has complained of her limb and her foot to me.”

Joseph H. Pitzer was permitted to testify, over the objec- - tion of the defendant, among other things, as follows:

“Q,. Now, Mr. Pitzer, state to the jury what facts you may know with reference to her condition, with reference to her suffering and bodily pain and mental distress. A. I don’t know anything, only what she has told me herself.

“ Q,. What have you heard her say about it ? of what has she complained ? A. She has told me frequently that she has suffered. She complained of her head and leg, having a great misery in it. She complained of misery in her side and hip.”

On cross-examination he testified, among other things, as follows:

“Q. All you know about her suffering and pains since the iniury, is what she has told you, is it not, Mr. Pitzer? A. That is all, sir.”

We think it is well settled that it is incompetent to prove the declarations of an injured party, or of a party suffering from some cause, made after the injury has happened or after the cause of his suffering has occurred, with regard to the facts of the injury or the cause of his suffering. (Roosa v. Boston Loan Co., 132 Mass. 439; Morrissey v. Ingham, 111 id. 63; I. C. Rld. Co. v. Sutton, 42 Ill. 438; Collins v. Waters, 54 id. 485; Benton v. The State, 1 Swan, [Tenn.] 279; Spatz v. Lyons, 55 Barb. 476.) And even proof of the declarations of a party, with regard to past suffering or pain, or past conditions of body or mind, is not competent. (G. R. & I. Rld. Co. v. Huntley, 38 Mich. 537; Lush v. McDaniel, 13 Ired. 485; Reed v. N. Y. C. Rld. Co., 45 N.Y. 574; Rogers v. Crain, 30 Tex. 284; Chapin v. Inhabitants of Marlb., 75 Mass. 244; Rowell v. City of Lowell, 77 id. 420; Emerson v. Lowell Gas Light Co., 88 id. 146; Inhab. of Ashland v. Inhab. of Marlb., 99 id. 48; Ins. Co. v. Mosley, 75 U. S. 397, 405.)

There are probably no authorities opposed to these propositions, and yet there are authorities which seem almost to oppose the last one, especially where the declarations are made to a physician or surgeon while he is examining the party as a patient. (Quaife v. C. & N. W. Rly. Co., 48 Wis. 513; same case, 33 Am. Rep. 821; Barber v. Merriam, 93 Mass. 322; Fay v. Harlan, 128 id. 244; Gray v. McLaughlin, 26 Iowa, 279; Matteson v. N. Y. C. Rld. Co., 35 N. Y. 487; L. N. A. & C. Rly. Co. v. Falvey, 104 Ind. 409; same case, 23 Am. & Eng. Rid. Cases, 522; same case, 22 Cent. L. J. 322.) Declarations, however, of a party with regard to a present and existing pain or suffering, or with regard to the present condition of the body or mind, may generally be shown by any person who has heard them. (Ins. Co. v. Mosley, 75 U. S. 397; Hatch v. Fuller, 131 Mass. 574; Denton v. The State, 1 Swan, [Tenn.] 279; I. C. Rld. Co. v. Sutton, 42 Ill. 438; Collins v. Waters, 54 id. 485; L. N. A. & C. Rld. Co. v. Falvey, 104 Ind. 409; same case, 23 Am. & Eng. Rld. Cases, 522; same case, 22 Cent. L. J. 322; 1 Greenl. Ev., § 102, and cases there cited; 1 Whar. Ev., § 268, and cases there cited.) There are authorities seemingly opposed to this last proposition: Reed v. N. Y. C. Rld. Co., 45 N. Y. 574; G. R. & I. Rld. Co. v. Huntley, 38 Mich. 537.

We think, however, that whenever evidence is introduced tending to show a real injury or a real cause for suffering or pain, as in this case, the declarations of the party concerning such suffering or pain while it exists and as simply making known an existing fact, should be allowed to go to the jury for what they are worth, and the jury in such a case should be allowed to weigh them and to determine their value. If they were made to a physician or surgeon while he was examining the party as a patient, for the purpose of medical or professional treatment, and for that purpose only, the declarations would be of great value. If, however, they were made at any other time or under any other circumstances, they might not be of such great value. If made casually to some person not a physician, and with whom the party had no particular relations, they might possibly in some cases be of but very little or no value. (Reed v. N. Y. C. Rld. Co., 45 N. Y. 574.) Yet generally they should be permitted to go to the jury for what they are worth. (Ins. Co. v. Mosley, 75 U. S. ; Hatch v. Fuller, 131 Mass. 574; Rogers v. Crain, 30 Tex. 284; Matteson v. N. Y. C. Rld. Co., 35 N. Y. 487; Gray v. McLaughlin, 26 Iowa, 279; Kennard v. Burton, 25 Me. 39; The State v. Howard, 32 Vt. 380; Lush v. McDaniel, 13 Ired. 485.)

Also, if the declarations are made to a physician or other person merely for the purpose of obtaining testimony in the party’s own case, they might be of very little value, and possibly might in some cases be wholly excluded. (G. R. & L. Rld. Co. v. Huntley, 38 Mich. 537.) But the mere fact that the declarations are made after suit has been commenced and while it is pending will not be sufficient to exclude the declarations, and generally they should be allowed to go to the jury. (Barber v. Merriam, 93 Mass. 322; Hatch v. Fuller, 131 id. 574.)

4. Present pain; ofpSyís15 material’ no In the present case we cannot say that the court below committed any material error in admitting the evidence objected to. Everything; that the witnesses, Mrs. Thatcher J ° ' an<^ -M-r- Ifitzer, testified to was proved by the competent testimony of other witnesses. The injury, the impaired health, the suffering, the pain, and the entire condition of the plaintiff’s body were fairly shown by evidence that cannot be questioned, and very nearly all the declarations of the plaintiff', as testified to by Mrs. Thatcher and Mr. Pitzer, were in substance declarations of present and existing pain, suffering, and conditions of the body, and not narratives of past pain, or suffering, or conditions of the body; and to this extent they were unquestionably competent. Those declarations, if any, which were not concerning present and existing pain, suffering, and conditions of the body, were so small in amount and so trifling and insignificant in their influence, and were concerning matters which were so thoroughly and incontestably proved by other competent evidence, that their admission by the court could not be material error.

There are a few other questions presented by counsel, which we hardly think it is necessary to discuss. The special question of fact No. 63, which the defendant asked the court to submit to the jury, and which was refused, was sufficiently covered by other more specific questions. Besides, that question might perhaps be objectionable under the rule stated in the case of Foster v. Turner, 31 Kas. 58, 60, et seq. The instructions refused, so far as they stated the law of the case, were sufficiently covered by other instructions given by the court.

The judgment of the court below will be affirmed.

All th'e Justices concurring.