Aske v. Duluth & Iron Range Railroad , 83 Minn. 197 ( 1901 )

BROWN, J.

This action was brought to recover damages for personal injuries alleged to have been caused by the carelessness and negligence of defendant. Defendant had a verdict in the court below, and plaintiff appeals from an order denying a new trial.

Plaintiff took passage on one of defendant’s railway trains at Lester Park, near Duluth, for Two Harbors. In going aboard the train she received certain injuries,.or at least it is claimed that she did, and the charge is that the negligence of defendant was the cause of such injuries. At the trial plaintiff offered evidence tending to show the negligence and carelessness of the defendant, her injuries and suffering, and the nature and extent thereof. It became necessary, as an issue in the case, to inquire into her physical condition with respect to the injuries alleged to have been received, and the nature and extent of the same. Before the commencement of the trial, defendant’s attorney applied to the court for an. order appointing two physicians to make an examination of her person. The order was not opposed by the attorney for plaintiff. In fact, he consented to it, and selected one of the physicians named by the court; defendant’s attorneys having named the other. At the trial of the action, counsel for defendant offered this order in evidence. It was objected to by plaintiff, and the order overruling the objection is assigned on this appeal as prejudicial error. It presents the only question in the case, and whether the plaintiff was prejudiced thereby is the only matter requiring the attention of the court at this time.

There can be no doubt of the power and authority of a trial court to compel a party, in actions of this character, to submit to an examination of his person, for the purpose of determining, as far as possible, the nature and extent of the injuries complained of. The court may make such an order, and condition a refusal to submit thereto the dismissal of the action. Wanek v. City of Winona, 78 Minn. 98, 80 N. W. 851.

Whether the order of appointment may be introduced in evidence for the purpose of affecting the credibility of the physicians, need not be determined at this time. The question is not free from doubt, and, as we view the record before us, plaintiff is not shown to have been prejudiced thereby, and cannot complain. The case comes to this court on a bill of exceptions, and all the evidence is not returned. We are not informed just what testimony one of the physicians gave, and the testimony of the other relates solely to the physical condition of the plaintiff, and the probabilities as to the cause of her condition. He gave no testimony with respect to the main question in the case, viz., whether plaintiff’s injuries were caused by the negligence of defendant, and his evidence, if taken as true, would not preclude the jury from finding in plaintiff’s favor. The verdict having been in favor of the defendant, the jury must necessarily have found against the plaintiff! on the issue of the negligence of defendant, and that no act on its part was the cause of her injuries. As stated, the physicians gave no testimony on this branch of the case; nor did they pretend to say that the condition of the plaintiff, as disclosed by their examination, was not the result of the wrongful act of defendant. Therefore, whether the order of the court appointing the physicians gave them any special standing or credit before the jury, because named and designated by the court to make the examination, is not important, and could not have influenced them upon the question of negligence. And, besides, the record before us is wholly silent as to whether the fact of the appointment of the physicians was ever called to the attention of the jury, in the arguments of counsel, or otherwise. In view of all these facts, it is clear that, whether such an order may be received in evidence or not, the plaintiff was in no way prejudiced thereby, and the ruling receiving it in evidence presents no ground for a new trial.

The order appealed from is affirmed.