36 Kan. 769 | Kan. | 1887
The opinion of thg court was delivered by
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
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.
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*781 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
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.
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.)
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
The judgment of the court below will be affirmed.