Washington & Old Dominion Railway v. Slyder
43 App. D.C. 95
D.C. Cir.
1915
Check Treatment
Mr. Justice Robb

delivered the opinion of the Coxirt:

The contention is here advanced, and cases cited tending to sustain it, that a mere statement made by a party to a medical expert called to give an opinion upon a case under consideration, when made for the sole purpose of furnishing the expert with information upon which to base an opinion, is not admissible It is unnecessary to consider this contention, for the reason that there is no evidence upon which to base it. The language of Mr. Chief Justice Shepard in Washington, A. & Mt. V. R. Co. v. Finsham, 40 App. D. C. 412, where a similar contention was made, is apposite: “The objection assumes that this examination was made to elicit evidence for use in the trial merely, — an assumption for which there is no foundation in the record. * * * Had it not been for treatment of the ailment, the fact could and should have been elicited when the witness was under cross-examination. There was no error in refusing to exclude the evidence.” See also Northern P. R. Co. v. Urlin, 158 U. S. 271, 39 L. ed. 977, 15 Sup. St. Rep. 840; Fleming v. Springfield, 154 Mass. 520, 26 Am. St. Rep. 268, 28 N. E. 910.

At the request of the plaintiff the court instructed the jury that if they believed from the evidence that the defendant operated, managed, and controlled the railroad and passenger cars mentioned in the declaration, sold plaintiff a ticket, and accepted him as a passenger, it “was bound to use its utmost skill and vigilance, so far -as human care and foresight would go, to guard against the possibility of accident from the condition of its machinery, tracks, or electrical appliance used by it in such transportation of the plaintiff, while he was on the, defendant’s car, and while he vTas at the point of alighting therefrom, both while in the act of alighting, and for such reasonable period of time as would permit him to get in a place of safety after alighting,” and that if the jury believed *100from all tlie evidence that the defendant’s failure to use such skill and vigilance resulted in the accident which directly caused the injury to the plaintiff', and that such accident was the reasonable and probable result of defendant’s failure to use such skill and vigilance, then the defendant was guilty of negligence. To the granting of this instruction a general exception was noted. Counsel for the defendant now for the first time point out their objection to this prayer, and say that while they concede that the defendant was “under the duty to use its utmost skill and vigilance, as far as human foresight would go, to guard against the possibility of accident from the condition of the car in which the plaintiff was a passenger, and the car and tracks and electrical appliances and machinery in relation^ thereto, yet that no such duty is owned to a person after he has alighted from the car.” The failure of counsel to bring to the attention of the trial court the particular part of this prayer to which they objected would justify us in passing it by without consideration. McDermott v. Severe, 202 U. S. 610, 50 L. ed. 1168, 26 Sup. Ct. Rep. 709. The most appropriate time for the correction of errors is during the progress of the trial, that the delay and expense of a retrial may be avoided. It therefore is the duty of counsel to point out to the trial court the specific grounds upon which they base their objection.

However, the ground upon which the exception now is based is untenable. According to all the evidence the plaintiff, when he was injured, had not left the premises of the defendant. That this was thoroughly understood at the trial is apparent from other portions of the court’s charge, in which, without any objection by defendant’s counsel, the jury was told that the plaintiff “had not left the premises of the defendant” at the time he was injured. In such a situation the carrier’s responsibility for the safety of its passenger, so far as its agencies are involved, do not end until he has been afforded an opp'ortunityto leave its premises. Topp v. United R. & Electric Co. 99 Md. 630, 59 Atl. 52, 1 Ann. Cas. 912; Great Falls & O. D. R. Co. v. Hammerly, 40 App. D. C. 196; Mellon v. *101Birmingham R. Light & P. Co. 153 Ala. 95, 16 L.R.A.(N.S.) 467, 45 So. 151; Chunn v. City & Suburban R. Co. 207 U. S. 302, 52 L. ed. 219, 28 Sup. Ct. Rep. 63. Moreover, it is not open to question in this jurisdiction that it is the duty of a carrier to exercise the highest degree of care for the safety of its passengers, not only when in the act of alighting, but until after such reasonable period of time as would permit them to get into a place of safety. Capital Traction Co. v. Lusby, 12 App. D. C. 295; Great Falls & O. D. R. Co. v. Hill, 34 App. D. C. 304. It would be a curious rule that would hold guiltless a carrier where, as here, in the absence of contributory negligence, it had negligently injured a passenger before he had gotten away from the car from which he alighted.

Defendant requested the court, which request was refused, to instruct the jury, as matter of law, that if they should find that the plaintiff, when about to alight from the car he was riding in, saw, or by the exercise of reasonable care and prudence could have seen, that immediately to the east of that car was another track, “and that it was dangerous to alight on that side, and also sawq or by the exercise of reasonable care and prudence could have seen, that the depot and waiting room of the defendant was on the west, and that there were no tracks of the defendant upon that side, and that it was not dangerous to alight upon that side, and that, with such knowledge, he nevertheless attempted to and did get off from the east side of said car, and that under all the circumstances of the case his action in so doing was negligence which contributed toward the injuries complained of,” their verdict should be for the defendant. This prayer was not applicable to the facts before the jury. The evidence showed that the plaintiff alighted from the side from which other passengers were alighting; that the only car to the east was at rest, without anything to indicate that it would move or be .moved. In short, so far as the evidence discloses, there was nothing to indicate to the plaintiff that it was dangerous to alight from the east side of the car. The court instructed the jury, however, at the request of the defendant, that even though they should find “that the defend*102ant was guilty of negligence, yet if they further find from the evidence that after the plaintiff alighted from the car on the west track he saw, or by the exercise of reasonable care and prudence could have seen, the car on the east track approaching him, in time to get back upon the car he alighted from before being struck, and that he failed to do so, and that his failure to do so was negligence which contributed toward the injuries sustained by him,” their verdict should be for the defendant. This charge was more, favorable to the defendant than the evidence really warranted, for the uncontradicted evidence was to the effect that the plaintiff did not have time to get out of the way of the apj>roaching car after he saw it, or by the exercise of reasonable care and prudence could have been expected to see it approaching.

At the request of the defendant the court instructed the jury that their verdict should be based solely upon the evidence and without regard to the parties; that it would be a violation of their oaths as jurors to be influenced by, or to consider to any extent or for any purpose, the fact that the plaintiff was an individual, or that the defendant ivas a corporation; that it was their duty to permit neither sympathy nor prejudice in favor of or against either of the parties to have any influence upon their verdict. In the course of his argument to the jury, counsel for the defendant read this instruction, and “called the jurors’ attention to the fact that they were on oath sworn to try the case on the evidence alone.” During his closing argument, counsel for the plaintiff commented on this argument of counsel for the defendant, and alluded to the fact that counsel for the defendant had prepared the instruction. Plaintiff’s counsel then proceeded further as follows: “As though the jury did not know they were under oath to try this case upon the evidence; as though the jury were going to forget their oaths as jurors.” Thereupon counsel for the defendant moved the discharge of the jury. The court overruled the motion, admonishing counsel for the plaintiff to be “temperate in his argument.” The overruling of this motion forms defendant’s last assignment of error.

*103While it was error for counsel to comment upon the fact that defendant’s counsel had prepared the instruction in question, for the obvious reason that, the instruction having been granted, it became the law of the case, and counsel preparing it were not subject to criticism for so doing, we do not think the error was so prejudicial as to justify the extreme measure suggested. Counsel for both parties urge upon the jury not to forget their oaths as jurors, and to decide the case upon the evidence. Under the circumstances, we think the motion should have been that the jury be instructed to disregard the objectionable remarks, and not that it be discharged. In the absence of such a motion, we think the court’s admonition to counsel for the plaintiff ivas sufficient.

Judgment affirmed, with costs. Affirmed.