129 P. 319 | Mont. | 1912
delivered the opinion of the court.
This action was commenced on May 18, 1911, by the plaintiff, Emerson, against the Butte Electric Railway Company, a corporation, and J. R. Wharton, defendants, to recover damages for personal injuries alleged to have been suffered on the 9th day of May, 1911, while plaintiff was traveling on one of the cars of the defendant company as a passenger. The complaint alleges that the car upon which plaintiff was riding was derailed by reason of the carelessness and negligence of the defendant company and Wharton, its superintendent, and that by reason
1. Plaintiff having been a passenger, the complaint is sufficient under the rule laid down in Pierce v. Great Falls & C. Ry. Co.,
2. There was no misjoinder of parties' defendant. (Knuckey
3. It was competent to show how many people were on the ear
4. Dr. Horst, a witness for the defendant, had testified in
5. It was contended, in argument before the bar of this court, that the case of May v. Northern Pac. Ry. Co., 32 Mont. 522, 4 Ann. Cas. 605, 70 L. R. A. 111, 81 Pac. 328, should be disapproved and overruled. In that case it was held that in an action for personal injuries the district court, in the absence of legislation, might not compel the plaintiff to submit to a physical examination by physicians or surgeons appointed by the court. However, as no request for such examination was made in this case, the question is not before us.
6. It is also claimed that the defendant by its evidence overcame the presumption of negligence raised by the derailment of the car. We cannot agree with this. While much of
7. It is also contended that the evidence fails to support the verdict. Plaintiff testified: “This particular car that I took was crowded. I did not get a seat. The first thing I knew the car was off the track. I noticed it was off because I was thrown from one side of the car to the other, I was not the only person
Dr. Monahan testified: “I made a physical examination of Emerson about the 17th of May. I made notes which I will
Mrs. Anna Bloom testified: “Mr. Emerson was rooming with me. When he was first brought from the hospital he called me and I gave him a hot-water bottle. He ivas in pain. I noticed a short time after the injury there were stre.aks of blood in the cuspidor in his room.1'’
Hubert Tonkin, assistant foreman of the Badger State mine, testified: “Emerson has been doing everything as a miner. He
P. F. Tallón, also an assistant foreman, gave similar testimony. He also testified: “I never noticed him limping or having to use a cane or any support around the mine. ’ ’
Mrs. Chas. Noyes testified: “Mr. Emerson was a boarder of mine on the 10th of May and for about two months after. During the time he was in the house and before he went to work I observed his appearance and his walk and manner. I would say that he was not a man who was failing in weight or failing in health or suffering pain. If he said he lost eight pounds I will say I think he gained eight pounds. [This statement may possibly be attributed, in part at least, to a feeling of professional pride on the part of the good lady.] After the accident I saw him three times a day, regular, after a day and a half. He was regular to his meals after that time. I observed his general appearance as to health and so forth, both before and after the accident, and I thought his general appearance improved greatly. After the accident his appearance was that of a pretty husky-looking man; there was no appearance of anything the matter with him only a little lame. I never saw him with the appearance of being in pain or suffering at all. He was jovial as usual. In my judgment he gained flesh rapidly after the accident. The day after he was hurt he told me he was going to start a suit.”
Mrs. George Noyes testified: “I used to see Emerson every evening going to dinner. I observed him walking on the street both before and after the 9th of May. I did not observe any difference in his walk only that he had a cane with him and that was all. I observed him when he would meet street-cars. He would limp a little more then. And he would limp a little bit more when he came across anyone whom he knew. I also observed him when he was going along Park street one day and he was going a pretty swift gait; I knew I would have to run to
Dr. P. H. McCarthy, in answer to a hypothetical question embodying the evidence, testified: “I am positive that the injury was not very severe. If it were a genuine injury the only place you would expect to find it would be in an injury to the spine. If it were an injury to the softer tissues this pain would disappear before, or cause some acute trouble that would justify you in doing something that would do away with that pain before now. If it is an injury to the spine, five months afterward you are bound to find changes in the tissues. The muscles would become weakened, the man’s gait would change, he could not work in a raise; I know that; nor he could not run a.car; nor a machine in the mine. If you had any injury whatever to the spinal cord you would not be able to work in the mine. You would become dizzy and if you exerted yourself the chances are you would fall down. Taking into consideration the facts set forth in the hypothetical question and from the showing of the length of time the patient followed the occupation of mining under the conditions stated, and judging from the following of the occupation that this patient has followed since the time of the injury, I would say that he was not injured at all. Q. In view of the facts stated in the hypothetical question addressed to you, and in view of the further fact that at all of the times while Dr. Monahan was testifying he stated positively that there was nothing to indicate any pain, injury or suffering, permanent or otherwise, other than the history of the ease as stated to him
Dr. C. H. Horst, in answer to the same hypothetical question, replied: “I would say that it was an injury of a mild character, a moderate grade injury, but of no permanency whatever. I do not consider that a man who could work and do the work described' in this question could- be possibly permanently injured. The fact that a man has not any objective symptoms does not conclude the matter that he was not injured.” Both doctors testified that a physician who was in personal attendance on a patient was in a better situation to judge of the severity and extent of his injuries .than one who was simply called upon to answer a hypothetical question.
Dr. H. H. Hanson answered the hypothetical question thus: “That is the history of- a first-class able-bodied man. That injury was just simulated; that’s all; If the injury claimed by the patient continued for five months and he pursued the vocation he did, and did the character of work he did, I will say if the man was able to do a good day’s work for that length of time he must be in a first-class condition.”
In view of this evidence we cannot say, as a matter of law, that a verdict for the plaintiff was not justified.
8. But it is also contended that the verdict is excessive, so much so that it. evinces passion and prejudice on the part of the
Reversed and remanded..
Rehearing denied February 13, 1913.