| Minn. | Aug 1, 1893
This was an action to recover for injuries said to have been caused by one of defendant’s motormen while plaintiff was a passenger upon one of its cars on the Interurban Line. The claim was that while plaintiff was alighting from the car at a proper stopping place, and in a prudent manner, the car was carelessly, suddenly, and negligently put in motion, thereby throwing him to the ground with great violence. The plaintiff recovered a verdict for the sum of $8,800, and this appeal is from an order denying defendant’s motion for a new trial. A large number of assignments
1. It would seem to be conclusively shown from the testimony that plaintiff had been in good health for many years prior to the alleged accident, in October, 1891, and that immediately thereafter he was obliged to cease work, and to have medical treatment. He was not relieved by this treatment, and has gradually grown worse*; his affliction being, if the medical experts are correct, an incurable disease of the spinal cord. This is a progressive disease, according to the testimony, and it was proper to show the condition of the plaintiff’s health for some time prior to the day on which he stated that he was thrown to the ground. His counsel may have been overzealous when he proved the state of plaintiff’s health at a somewhat remote period, but no harm could have resulted to the defendant from this.
2. The physician who attended the plaintiff from the time of the accident until the latter moved to Chicago — about one month — was called as a witness. He had heard the plaintiff’s testimony as to the manner in which he was thrown to the ground, the kind of injuries inflicted, and his present bodily condition, and there was no error in the rulings of the court, under which the witness was. permitted to answer questions in respect to the cause of plaintiff’s condition while he was in attendance upon him, as well as at the time of the trial, and also to give an opinion as to the permanent or incurable nature of the disease, — all being based upon the assumption that plaintiff was a well man before the accident, and had told the truth about the way it occurred. The same may be said in reference to the testimony of Dr. Church, a specialist, of Chicago, who had visited the plaintiff in that city in consultation with his regular medical attendant. These questions all assumed a state of facts respecting which there had been evidence tending to prove the same, and counsel was entitled to have the opinions of medical experts, based upon the facts assumed, and relative to the subject of his inquiries. Peterson v. Chicago, M. & St. P. Ry. Co., 38 Minn. 511" court="Minn." date_filed="1888-06-12" href="https://app.midpage.ai/document/peterson-v-chicago-milwaukee--st-paul-railway-co-7965671?utm_source=webapp" opinion_id="7965671">38 Minn. 511, (39 N. W. Rep. 485.)
3. No question ought to be raised as to the competency of Dr. Briggs to testify as an expert in respect to the disease attributed
4. The objections made by counsel for appellant to the questions put to Dr. Church as to plaintiff’s statements in his presence, concerning his present pain and suffering, are disposed of by calling attention to Jones v. Chicago, St. P., M. & O. Ry. Co., 43 Minn. 281, (45 N.W. 444" court="Minn." date_filed="1890-05-16" href="https://app.midpage.ai/document/jones-v-chicago-st-paul-minneapolis--omaha-railway-co-7966483?utm_source=webapp" opinion_id="7966483">45 N. W. Rep. 444;) Johnson v. Northern Pac. R. Co., 47 Minn. 430" court="Minn." date_filed="1891-12-01" href="https://app.midpage.ai/document/johnson-v-northern-pacific-railroad-7967203?utm_source=webapp" opinion_id="7967203">47 Minn. 430, (50 N. W. Rep. 473.)
5. The question asked the witness Doyle by defendant’s counsel, as to what happened when he (Doyle) reached Marion street, was. certainly immaterial. It may have had some bearing on the case, but this was not made to appear. The court could not surmise that the witness saw the accident which was being inquired into, or that an answer to the question would have been his version of the manner in which it happened. The counsel did not go far enough with his inquiries to show that Doyle’s testimony was pertinent to the-case.
6. For some months prior to the trial the plaintiff had resided in Chicago, HI., and his testimony was taken by deposition. It was claimed that his physical condition was such that he could not be present at the trial. Against the objections of defendant’s counsel, a photograph, which, according to the testimony, had been taken a few days before the trial, and was “a true and correct picture and representation of those parts of Mr. Cooper’s body that it purport» to show,” was received in evidence. This ruling is specified as-error. We are assured by counsel, in their brief, that the expression upon the face of a lost soul, as portrayed by the combined imaginations of Dore and Dante, would be extremely jovial in comparison with that depicted upon plaintiff’s face in this work of art. We are not prepared to disagree with counsel in this contention, or their further claim that the expression upon a man’s face may be-easily changed or distorted, and rendered very misleading, when brought before a camera. But the portrait in question has not been forwarded on this appeal, and we have no means of knowing whether it purported to represent anything more than those part» of plaintiff’s body which could not have been affected by temporary
7. We have examined with care the charge of the court to the jury, and find that it was full and complete. All of the defendant’s requests to charge, which were pertinent to the facts, were embraced therein. There could have been no misunderstanding on the part of the jury as to the issues, and that it was incumbent upon the plaintiff to show, by a preponderance of evidence, that the defendant’s servant, carelessly and negligently, started the car, and that plaintiff did not contribute to the result by his own negligence. If the plaintiff’s statement of the manner in which the accident happened was believed by the jurors,—and they had the Tight to believe him,—they might easily conclude, as they •evidently did, that the carelessness and negligence of the motoneer was established, and that there was an utter absence of testimony tending to indicate that plaintiff contributed thereto. 'The admitted fact that plaintiff started for the platform step before the car stopped, and stood there, ready to promptly alight when it should come to a standstill, even if it should be admitted that these were acts of carelessness and negligence, had nothing whatever to do with the accident, as counsel seems to argue, for, according to plaintiff’s testimony, he remained upon the step, safe and uninjured, until the car came to a full halt. He was not injured in going to, •or while standing on, the platform or step, but while getting down from the latter. We cannot say that the evidence was insufficient
8. But one of the remaining specifications of error needs to be specially mentioned. It is said that the damages awarded are excessive. The plaintiff, when injured, was about 58 years of age, a bookkeeper by occupation, constantly employed, and earning $70 per month. He has been unable to work since the accident, has suffered great pain, and has steadily been under medical treatment. From a man in good health, he has become very emaciated, and at the time of the trial had been bedridden for several months. The' evidence is conclusive that the disease is incurable, progressing slowly, and ultimately causing death, although he may live for years in this most deplorable condition of mind and body. Under these circumstances, we are not justified in pronouncing the verdict ex cessive. The amount awarded cannot be so regarded, when compared with the verdicts rendered and upheld in Hall v. Chicago, B. & N. R. Co., 46 Minn. 439" court="Minn." date_filed="1891-07-01" href="https://app.midpage.ai/document/hall-v-chicago-burlington--northern-railroad-7967035?utm_source=webapp" opinion_id="7967035">46 Minn. 439, (49 N W. Rep. 239,) and Bishop v. St. Paul City Ry. Co., 48 Minn. 26, (50 N W. Rep. 927.)
Order affirmed.