White v. Milwaukee City Railway Co. , 61 Wis. 536 ( 1884 )

Ltojv, J.

I. It is claimed on behalf of the defendant that no sufficient evidence was given upon the trial to support the finding that the defendant was guilty of negligence which caused the injuries complained of.

'We do not think that negligence can bp imputed to the defendant by reason of the manner in which it constructed its railway. The track seems to have been laid in the usual and proper manner, and the frogs placed in the proper positions to keep the cars upon the track when they passed the bridge. In view of the direction in which the cars were moved on the respective tracks, it would be unreasonable to require the defendant to construct its tracks to guard against a contingency such as occurred in the present case. Moreover, it does not appear that the company, in this respect, has violated any of the requirements of its charter, or any order or direction of the authorities of the city of Milwaukee.

It is obvious, however, that a car passing north on the west track from the south abutment to the bridge (as was the car in question) would be much more liable to leave the track than one going in the opposite direction on the same track. This fact would render it the duty of the servants of the defendant in charge of the car to exercise more caution to keep the car on the track than would be required were it moving in the opposite direction. Manifestly the most effectual precaution that could be used to keep the car on the track, or, at least, to prevent injury to passengers if it left the track, would be to drive slowly from the abutment to the bridge. The testimony in the case, although conflicting, tends to show that this car was driven rapidly at that point. Whether moving the car at such a rate of speed, was or was not negligence, is peculiarly a question of fact for the jury. The finding in that behalf is supported by the evidence. We conclude, therefore, that there was no error in submitting the question of defendant’s negligence to the jury, and the verdict on that question cannot be disturbed.

II. The testimony of the plaintiff and some of her witnesses tends to show that at the time of the trial she had not recovered from the effect of the injuries; that her limb was not then in a normal condition; and that the effect of such injuries w'ould or might be permanent. She testified that five physicians had examined her limb, among whom was Dr. Hare. During the trial counsel for the defendant made the following request, and the following proceedings were thereupon had: “Defendant's counsel: We ask of the court to direct the plaintiff, who is now present, to submit her limb for examination in a private room attached to the court-room, privately, to Drs. Senn and Hare, who are now present, and that if she wish she can be accompanied by any of her own female friends who are present, or any other physician whom she chooses. Court: I do not see anything improper in the request, but I do not think I have any authority to compel a suitor to submit, in a cáse of this kind, to any examination against his or her will; I therefore refuse the application. Defendant excepts. Plaintiff’s counsel says: /The plaintiff herself declines to have the examination in the absence of her physician, who, as her attorney is informed and believes, has left the city since he has been on the wdtness stand.’ ”

It will he seen that the court denied this request on the sole ground that he had no authority to compel the plaintiff to an examination against her will. On principle and authority we are satisfied that this was error. The then condition of the injured limb had a most important bearing upon the question as to whether the plaintiff’s injuries were permanent, and an examination at that time, the results of which would have been put in evidence before the jury, would in all probability have greatly aided them in determining the extent and consequences of the injury. It would be, or might have been, more satisfactory and conclusive evidence on that subject than the statements of the plaintiff, or the opinions of the medical witnesses. The application for her examination contained in it every reasonable safeguard against offending the modesty or delicacy of the plaintiff, and although she might shrink from the examination, yet the ends of justice imperatively demanded that she submit to it. Such examinations are frequently ordered by courts in cases of divorce for impotency, and in cases of alleged pregnancy, and the authority of the court to order them has never been questioned, so far as we are advised.

In Walsh v. Sayre, 52 How. Pr. 334, the power of the court in a proper case to order a personal examination is asserted, and it is there said that it rests upon the same principle as does the power to compel the discovery of books, papers, and documents, the difference being that in a cash like this the principle extends to things or substances as well. Schroeder v. C., R. I. & P. R. Co. 47 Iowa, 375, is to the same effect. The opinion of Beck, J., in that case, and of Jones, J., in Walsh v. Sayre, supra, contain very able and satisfactory discussions of this question.

It is said by the learned counsel for the plaintiff that it rests in the sound discretion of the court to order or refuse an examination. Perhaps it does. But that discretion has not been exercised here. The court expressly denied the application because of alleged want of power to grant it. We hold that in a proper case the court has power to order an examination, and that this is a proper case in which to exercise it.

III. It has already been stated that to the question, “What injury did the plaintiff sustain, if any, by such accident?” the jury answered: “ Temporary injury to the right leg, which may prove permanent.”

This is but little, if anything, more than a finding that the injury may possibly be permanent. A mere possible continuance of disability by reason of an injury is not a proper element of damages. To justify the jury in assessing damages for future or permanent disability, it must appear by the proofs that continued or permanent disability is reasonably certain to result from the injury complained of. It is fair to assume that the jury predicated their assessment of damages in part upon the possibility of permanent injury. This also is error.

Other errors were assigned and argued by counsel, but as the above views are decisive of the case it is unnecessary to consider them.

By the Court.— The judgment of the county court is reversed, and the cause will be remanded for a new trial.