Stone v. Chicago, St. Paul, Minneapolis & Omaha Railway Co.

88 Wis. 98 | Wis. | 1894

PiNNEY, J.

1. There was sufficient evidence to warrant the submission of the case to the jury, under the instructions of the court, to find whether the conductor put the plaintiff’s intestate off the train in a proper way and using proper care; that if the conductor did not use proper caution, but compelled him to get off against his will, while the train was in motion so that it was dangerous for him to get off, and as a result he received injuries, it would be their duty to find for the plaintiff, whether he was a passenger or not. And the evidence was sufficient, in our opinion, to sustain the verdict of the jury against the defendant in this aspect of the case. The conductor was engaged at the time in the transaction of the defendant’s business, in the management and control of the freight train in question, and which did not carry passengers. He was acting within the scope of his authority at the time, as conductor of the train, so that the defendant company was plainly liable for any injuries sustained by the plaintiff’s intestate by reason of any imprudent, reckless, or wanton conduct on the part of the conductor in compelling him to leave the train, or by putting him off while it was in motion and under circumstances which rendered it imprudent or dangerous to do so. Holmes v. Wakefield, 12 Allen, 580; Rounds v. D., L. & W. R Co. 64 N. Y. 129. If Stone had no right to be on the train, as a passenger or otherwise, he was not thereby put beyond the protection of the law, or subject to be removed or compelled to leave the train in an improper manner or under circumstances of such difficulty or peril as to endanger his personal safety. The charge of the court in this respect was clearly just and proper. Conductors, while intrusted with very considerable power and control over persons coming upon their trains, are bound to exercise their authority of removal in a reasonable and prudent manner, and with a proper regard to the safety of even those not lawfully on their trains as passengers.

2. When Dr. Wade was consulted by the plaintiff’s intestate, the next morning after the occurrence in question, no action had then been instituted by him against the company for the injury of which he complained, though he probabty entertained some intention of bringing suit. Dr. Wade had been treating him for gastritis, and he had shown decided improvement. It does not appear what statement Stone made to the doctor, nor that he sought any opinion of him in respect to any contemplated action against the defendant; nor is it made to appear but that his statements were made solely with a view of obtaining medical treatment. Dr. Wade testified in respect to the objective sym ptoms,— those he was able to discover by observation, and examination,— and although, he says, in substance, that he could not distinguish between these symptoms and the subjective ones, learned by communication from the patient, in arriving at his conclusions, we think his evidence was competent and was properly admitted and that the court properly refused to strike it out. The statements or declarations of a patient, made' to a physician or surgeon for the purpose of obtaining advice or treatment, descriptive of his pains and their location, his symptoms, and the manner in which he is affected by an injury, may be given in evidence to show the character and extent of his. injury (McKeigue v. Janesville, 68 Wis. 57; Quaife v. C. & N. W. R. Co. 48 Wis. 513); but not when made to an expert, after action brought for an injury, in order to enable him to testify as a witness at the trial for the injured party (Stewart v. Everts, 76 Wis. 40, 42; Abbot v. Heath, 84 Wis. 317, 320). The rulings of the circuit court in respect to the evidence of Dr. Wade are fully sustained by the cases above cited.

3. The error, if any, in charging the jury that the plaintiff might recover punitory damages, was cured and obviated by the form of the verdict, by which the compensatory damages were stated at $1,000, and the punitory damages at $500; the verdict as to the punitory damages having been set aside on motion for a new trial. We do not think that there is any ground for saying that the charge of the court allowing the jury to find punitory damages had any tendency to increase the amount of the compensatory damages. As there were separate findings on the subject of damages, the presumption is that the compensatory damages were confined within proper limits.

This view of the case renders the consideration of all other errors assigned unnecessary. For these reasons, the judgment of the circuit court must be affirmed.

By the Court.— The judgment of the circuit court is affirmed.