101 Neb. 201 | Neb. | 1917
Plaintiff recovered judgment for' personal injuries received while in the employ of defendant. Defendant has made an unusual number of assignments of error, but they all fall within three or four general groups. The injury was received May 9, 1914, while plaintiff was engaged in switching 2 dead engines and 2 shop cars in the yards at Havelock, Nebraska, and is alleged to have been received
Defendant admitted the allegation as to employment, and that while in such employment plaintiff’s ankle came in contact with the tie or some other substance, denied all other allegations of the petition,- and alleged that plaintiff was an experienced switchman, knew the condition of ■the. track and premises, and that whatever injury he received arose out of the hazard which he assumed by virtue of his employment, and that his injuries were caused by his own negligence and carelessness. During the trial a shoe which plaintiff wore on his right foot at the time of the injury was offered in evidence. This shoe showed an abrasion of the leather, and on cross-examination defendant’s counsel asked the witness several questions in regard to the shoe, and as to the time when he concluded to preserve it as evidence. On redirect examination plaintiff testified that he concluded to preserve the shoe about the time defendant offered to pay him $750 in settlement. Timely objection to this testimony was made, but overruled. Subsequently the court struck out this testimony, and instructed the jury that the testimony was withdrawn from the record, and that they should not consider it or give it any consideration. Defendant says the action of the court in with-drawing the testimony and giving this instruction to the
Dr. Wilson, a witness for plaintiff, testified that in examining plaintiff’s limb he found an area of anesthesia; “he has no feeling on the inner side extending up to within about four inches below the knee; and he has no feeling in the back part of his leg extending up to about the half of the calf of the leg; that the reflexes, the knee jerk, is absolutely minus in that leg; * * * it indicated the absence of the proper condition of the nerve of the right leg. It also showed that the Babinski reflex was minus. * * * By scratching the bottom of the foot the great toe is in dorsal flexion. This is minus also. * * * I made a test of his pupillary reaction, of his eyes, and of the Romberg’s sign, showing a condition that we always try to find out in case there is any nerve trouble, and in measuring the foot I find the measurements of the leg on that side are three-quarters of an inch smaller than on the other. Q. At what point? A. At the calf is three-quarters and at the ankle is three-eights. Q. What does that indicate, Doctor? A. It indicates an atrophy of the muscle or a malnutrition.”
Presumably to contradict this testimony, defendant called as witnesses several doctors, all but one or two of whom were in its regular employ, to whom plaintiff had submitted his leg for inspection and examination. This testimony was objected to on the ground that it falls within the prohibition contained in section 7898, Rev. St. 1913, providing: “No practicing * * * physician ' * * *
In Battis v. Chicago, R. I. & P. R. Co., 124 Ia., 623, the court had under consideration a question somewhat analagous to that which we are discussing. The statute of IOAva is very similar to ours. The station agent called the local surgeon for the railroad company to attend plaintiff who had received an injury. It was claimed by the railroad company that the physician was its employee, was acting for it, and that the physician was in no sense the physician of plaintiff. The court said: “The allegiance of the physician must be wholly upon one side or the other.
The same rule which would exclude the oral testimony of. the doctor would exclude the radiographs of plaintiff’s foot. Its introduction in evidence would he a disclosure of a confidential communication.
In Sovereign Camp, W. O. W., v. Grandon, 64 Neb. 39, in discussing the statute at page 46, this court said: “The rule in this state, as well as in other states having a like statute, is that the above sections protect a party against any disclosure by a physician made to him in the course of his professional employment, and necessary and proper to enable him to . discharge his duty to his patient. Not only are such communications privileged, but whatever knowledge the physician may gain from observing his condition and symptoms is likewise privileged. There can be no doubt as to the rights of the patient in this respect, and the courts, in a proper case, are vigilant to see that these rights are fully protected.”
“Information acquired by the physician by looking at the patient or by examination is as much within the statutes as are the verbal communications which take place between them.” Smart v. Kansas City, 208 Mo. 162, 197.
Defendant complains because on cross-examination it was not permitted to inquire whether plaintiff had submitted himself for examination to specialists for the purpose of qualifying them as witnesses, and that he did not intend to produce these witnesses upon the trial. This line of examination was not pertinent' to anything developed in the examination of the witness in chief. He had the right to select his own physicians and his own witnesses. If counsel for defendant disbelieved the testimony of Dr. Wilson, who testified as to the character and extent of plaintiff’s injuries, he might have procured the testimony of men eminent as physicians and surgeons by application to the court for the appointment of a commission to make an examination of the person of the plaintiff. State v. Troup, 98 Neb. 333.
Defendant further complains because the court refused to submit the defense of assumption of risk, which it contends is applicable to this case under the federal employers’ liability- act. Was there sufficient proof to warrant the court in submitting this defense? Plaintiff alleges in his petition that defendant operates a line of railroad “in and through the states of Iowa, Nebraska, Kansas, Colorado, and Wyoming, over which- is carried passengers and freight for hire as a common carrier to and over points on its said railroad.” This allegation is admitted in the answer of defendant, but the answer makes no reference whatever to interstate traffic. The accident occurred in defendant’s yards at Havelock, Nebraska. The only testimony cited by defendant to sustain its contention that the engines being moved were engaged in interstate commerce was elicited on the cross-examination of the plaintiff: “Q. Were the cars next to the switch engine? A. They were. Q. And then came the two dead engines? A. Yes, sir. Q. They were both of the same class, were they not? A. Yes, sir. Q. What were they, 0-2? A. 0-2, or 0-1, I don’t remember now. Q. That is the largest class of freight engines used on the Burlington? A. I think so, at that time. Q. Since then they have put out the M-l? A. I think so. Q. But before your accident they were the largest class of locomotives in use by the Burlington on the lines west of the river? A. No. Q. Unless it would be the Mallet? A. The Mallets were larger; yes, sir. * * * Q. And they are used exclusively for hauling through freight trains? A. Yes, sir. Q. Had these dead engines, before the accident, been in use. by the Burlington? A. Yes, sir. Q. On the lines west? A. The lines east. Q. And had been brought .to Havelock for repair? A. Yes, sir. Q. After they were overhauled and
This testimony shows that the engines had been used for hauling through freight trains, but we are not informed as to what is meant by the term “through freight train.” There is no suggestion that these engines crossed a state line or that they hauled freight that crossed a state line. If we are left-to speculate as to the character of a through freight train, we might suppose that it is a train running from one division point to another division point without stopping.to pick up or to unload local freight. There are a number of division points on defendant’s lines within the state of Nebraska. To say they are in use on “the lines east of the river” or “the lines west of the river” is equally indefinite. The Burlington railroad crosses the Platte river at Ashland, a few miles east of Havelock, and this statement might as well apply to engines in use east of the Platte river or west of the Platte river as to apply to some river flowing between two states. If these engines had, in fact, been used in interstate commerce, defendant might easily have so shown, and it was its duty to do so. There being a failure of such proof, the court properly withdrew the defense of assumption of risk from the jury. But he not only withdrew that defense, but told the jury that, “by an express provision of the statutes of the state of Nebraska, the plaintiff in such case cannot be held to have assumed any of the risks of his employment; and, therefore, should yon find from the evidence, as heretofore stated, that the defendant or its servants was guilty of negligence as charged, and that the same was the proximate cause of plaintiff’s injury, then you should find that plaintiff did not assume the risk of his employment arising from such negligence.”
It is said in defendant’s brief that this instruction not only deprived defendant of that defense, but that “its plain purport is that defendant had interposed a defense declared unlawful by the legislature of Nebraska,” and that the effect of. this is to prejudice defendant’s cause in
It is not possible within the limits of this opinion to discuss separately all of the assignments made, but those not discussed have been considered. The verdict and judgment was for $17,500. Neither counsel has seen fit to favor us with any suggestion as to what would be a fair recovery under the circumstances, although counsel for defendant refers to this verdict as “monstrous and out of proportion to any possible injury inflicted.” At the time of the injury plaintiff was 37 years of age. He had a life expectancy of 29 years, and was earning from $100 to $125 a month as a switchman. He is not educated in any of the professions, but has throughout his life been engaged in hard manual labor. The nature of plaintiff’s injury is such as will necessarily prevent him from continuing in his usual occupation and will greatly lessen his capacity for earning money. What he may earn in his crippled condition is hard to estimate, still it is clear that he is not wholly incapacitated. There is but meager proof of pain and suffering, compensation for which is always difficult to measure. Though his foot is crippled, plaintiff is not entirely deprived of its use. Serious as his injuries are, they are not such as to sustain the verdict for the full amount, and we are constrained to hold that the verdict is excessive, and that plaintiff should be required to remit all in excess of $12,000. If plaintiff'files such remittitur within 20 days, the judgment as thus reduced is affirmed; otherwise it will stand reversed, and the cause remanded for further proceedings.
Affirmed on condition.