Opinion
No. 31190.
April 30, 1934. Suggestion of Error Overruled May 28, 1934.
1. WITNESSES.
In suit against railroad for personal injuries, railroad's physician, who attended deceased in hospital immediately after injury, held incompetent to testify.
2. EVIDENCE.
In suit for personal injuries, X-ray picture, taken by person in employ of physician who attended deceased immediately after injury and who was incompetent as witness, held inadmissible.
3. RAILROADS.
In suit for injuries sustained when automobile was struck by switch engine at street crossing, instructions peremptorily instructing jury that deceased was guilty of gross contributory negligence based on failure to stop, look, or listen, held improper, under evidence.
4. APPEAL AND ERROR.
Errors in giving of instructions may be assigned on appeal, and, if they contributed to inadequacy of damages, judgment will be reversed, although inadequacy of damages allowed was not main ground of motion for new trial.
5. APPEAL AND ERROR.
In personal injury action, erroneous instructions on contributory negligence held to warrant reversal of judgment on question of damages only, where liability was established on competent evidence, and there was no cross-appeal by defendant on that question.
APPEAL from Circuit Court of Washington County.
Wynn, Hafter Lake, of Greenville, for appellant.
Where, in an action against a railroad company for injuries at a crossing, it appeared that the plaintiff approached the crossing when no train was scheduled to pass, and the view of the track was obstructed except for the width of the street, and the plaintiff slowed up and looked and listened for a train, he was not guilty of contributory negligence, as a matter of law, for the failure to stop.
Louisville Nashville Railroad Co. v. Cromini, 86 Miss. 464, 38 So. 633; Hobson v. Kansas City M. B. Railroad Co., 87 Miss. 789, 40 So. 872.
It must be a rare case of negligence that the court should take from the jury.
Bell v. Southern R.R. Co., 30 So. 820; A. V.R.R. v. Carter, 77 Miss. 516, 27 So. 999; N.O. N.E.R.R. v. Brooks, 85 Miss. 275, 38 So. 40; Stevens v. Railroad Co., 81 Miss. 206, 32 So. 311.
We have found no decision of this court in which the court holds that the failure to stop, look or listen is, under all circumstances, a question of law for the court, and not a question of fact.
This court, in construing section 6124, Code of 1930, expressly held that, in crossing collisions, the court properly submitted to the jury the question of the motorist's contributory negligence, and instructed the jury to diminish the damages in proportion to such negligence, if any.
The privilege is that of the client or patient, and an objection to testimony as violating such privilege may be made by him, or, after his death, by his personal representative, and it has also been held that the objection may be raised by his assignee. But no other person has the right to such testimony, even after the death of the client or patient.
40 Cyc. 2394, par. (b); Davenport v. State, 108 So. 433, 143 Miss. 121.
The right of raising the question of confidential communication should be limited to the physician himself, or the heirs or personal representatives of the deceased; and the tort feasor, who has caused the decedent's injury or death, should not be permitted to prevent the doctor from testifying, and thereby prevent the extent of the injury arising from his tort being proven in an action wherein the tort feasor is the defendant, and the heirs or personal representatives of the deceased are the plaintiffs.
W.A. Percy and Ernest Kellner, Jr., both of Greenville, and Chas. N. Burch, H.D. Minor and Clinton H. McKay, all of Memphis, Tennessee, for appellee.
It is, as a matter of law, the grossest contributory negligence to drive up to a railroad crossing where the view is obstructed running fifteen or twenty miles an hour on a gravelled highway and not either look or listen until so close to the track that it is impossible to stop if looking or listening discloses a locomotive running about the same speed about equi-distant from the point of collision.
Gulf, etc., R. v. Seymour, 105 So. 766.
Appellant complains of the introduction of the deceased's statement given to a stenographer in the presence of an agent of the railroad in the hospital three days after the accident. That statement was offered as competent evidence under the decisions in the following cases:
Baldridge v. Stribling, 101 Miss. 666; Jackson v. Johnson, 126 Miss. 26; Middle Tenn. R.R. Co. v. McMillan, 134 Tenn. 490, 184 S.W. 20.
Appellant complains that the testimony of the deceased's physician should have been permitted. He forgets that the same doctor he tendered as a witness was tendered as a witness by the railroad. Whether the rule excluding such testimony as privileged and holding the privilege personal to the patient is wise or not, it seems to be settled in McCaw et al. v. Turner et al., 126 Miss. 260; Davenport v. State, 143 Miss. 221.
Appellant complains that the testimony of Mrs. Mason, an X-ray expert, employed by Payne, Hirsch Beck, physicians, was excluded. The trial judge found that her testimony was within the inhibitions of the rule laid down in Goodman v. Lang, 158 Miss. 204; Miss. Power Light Co. v. Jordan, 164 Miss. 174.
Nelms Blum v. Finke, 159 Miss. 372.
Peremptory instruction on gross contributory negligence of deceased was proper.
Y. M.V.R.R. Co. v. Williams, 114 Miss. 236; Gulf S.I.R.R. v. Adkinson, 117 Miss. 118; Gulf, etc., R. Co. v. Seymour, 105 So. 766; M. O.R.R. Co. v. Johnson, 165 Miss. 397.
The fact that deceased was struck by the locomotive, under the circumstances admitted by this record, conclusively demonstrates that he neither looked nor listened, or that, if he did look and listen at a point ten feet from the track, he saw and heard the train but could not stop before reaching the track — unless one prefers to believe that he attempted suicide. Testimony opposed to physical facts must be disregarded.
Michelson v. Nebraska, etc., Co., 63 F.2d 597, 700; 10 R.C.L., page 108, sec. 198; Pennsylvania R. Co. v. Chamberlain, 288 U.S. 333; Southern Ry. v. Walters, 284 U.S. 190.
If the instructions correctly charged the jury that deceased was guilty of gross contributory negligence, it is harmless that the court assumed immaterial facts.
Anderson v. State, 132 Miss. 147.
This court will not reverse for harmless error.
Ladnier v. Ingram Day Lbr. Co., 135 Miss. 632; Meridian Sanitorium v. Scruggs, 121 Miss. 330; Moore v. Johnson, 148 Miss. 827.
Argued orally by Jerome S. Hafter, for appellant, and by Ernest Kellner, Jr., for appellee.
J.B. Tonkel, administrator of the estate of M. Tonkel, deceased, brought suit against the appellee for injuries inflicted upon M. Tonkel occasioned by a collision between a switch engine of the appellee and an automobile being driven by M. Tonkel. The accident occurred about 7:15 A.M., at the crossing of O'Hea street with the railroad in the city of Greenville, Mississippi. M. Tonkel died subsequent to the injury, but not from the results of the injury.
The plaintiff sought to introduce the physician who attended M. Tonkel in the hospital immediately after the injury, but the defendant objected to this testimony. Subsequently, when the defendant was offering its proof, it sought to introduce this physician and other physicians who attended M. Tonkel, and on the plaintiff objecting thereto, the court sustained his objection. The defendant also sought to introduce an X-ray picture made by a party employed by one of the physicians who attended M. Tonkel and who had the picture made for the determination of the injuries inflicted upon M. Tonkel by the collision of his automobile with the switch engine of the appellee. The party who made the picture testified that she had no contract with M. Tonkel to make the picture, but was directed to do so by the firm of physicians by whom she was employed, and that the picture was turned over to the physicians for their use, and that she was not paid for this service by M. Tonkel. Objection to this testimony was made and sustained by the court.
The testimony of the employees who were operating the switch engine tended to show that M. Tonkel drove upon the track without stopping to look or listen for the approach of an engine, and that the bell was ringing.
There was other proof that the bell was not ringing nor the whistles blowing, and that the engine was being operated in excess of six miles per hour.
The defendant introduced a statement made by M. Tonkel taken down by a stenographer, reading as follows:
"Q. Go ahead please sir and tell me what happened. A. I was driving along pretty well — not a concrete street — a gravel street. It was exactly 7:15 in the morning. I was about the crossing, the first track, you see and all of a sudden I saw the engine hit me right straight the car. I didn't hear or see the train. First thing I saw it was right on me. When it hit me, of course, I was frightened. The next thing it was pushing me at least a hundred and fifty feet. I tried to let myself have it sideways. See it hit the car on this side (right). Thought I might be able to get out. When it hit me a good lick over my shoulder (left) the lick on the side of the car and good like right here (right hip) and knocked me on my left side. Pinned me under the steering wheel. I tried to get up. I saw I couldn't get up from the drivers side of the car there laying on the ground. Right side engine was right on it. I was frightened. No chance. Only thing I was in hopes was the engine would stop. When it did stop, I was able to see a couple of men, maybe three, looking at me, but they didn't do anything. I hollered, `Please back the engine off of me so I can get out.' They never done a thing. I hollered again, `Please have them back the engine off of me so I can get up.' When they backed up I got up and when I got out I straightened myself up and in the excitement didn't know how bad I was hurt. Looked back to the engine and the car and it made me sick. Next thing I was here in the hospital. The first day I suffered a great deal and suffered a great deal the second day and the next day I started feeling better. All but my back right here, can't do a thing with my back. When I get down, I can't get up. Hurts me so. I was struck right there toward the right side. I am a little bit sore in my chest. Got another bruise on my right shoulder, can't reach it with my hand. Hit me with something from the engine. Then I had a cut over this hand. Dr. Gamble gave me a tetanus shot. To keep me from getting lockjaw.
"Q. About how fast were you driving? A. Must have been driving between fifteen and twenty miles. Wasn't driving fast at all.
"Q. Was it raining? A. It was a little bit foggy.
"Q. Did you stop before you reached the crossing? A. Before I reached the crossing I looked around. I don't think I stopped. Everything was clear.
"Q. About how far were you from the crossing when you looked? A. About ten feet from the crossing.
"Q. Did you look in both directions? A. I turned to the right and the left.
"Q. You never saw the train? A. No, sir.
"Q. Or heard the train? A. No, sir.
"Q. Was there anything to obstruct your view looking South? A. I remember I saw a water tank.
"Q. You were in that car alone? A. Yes, sir."
The court gave for the defendant three instructions, which, among others, are complained of, reading as follows:
"The court instructs the jury that when M. Tonkel passed the stop sign and did not stop, or look, or listen before going upon the right-of-way and the tracks of the defendant, he violated the laws of the state of Mississippi."
"The court instructs the jury that when M. Tonkel passed the stop sign and did not stop, or look, or listen before going upon the right-of-way and the tracks of the defendant, he violated the laws of the state of Mississippi, and was grossly negligent in so doing."
"The court instructs the jury, as a matter of law, that M. Tonkel was guilty of the grossest negligence in not stopping, or looking, or listening for a train before going upon the tracks belonging to the defendant."
There was a verdict and judgment for the plaintiff for one thousand five hundred dollars, from which this appeal is prosecuted because of the inadequacy of the damages allowed.
A motion for a new trial was made by the plaintiff in the court below, but inadequacy of the damages allowed was not made a ground of said motion. The giving of the three instructions above set out was assigned as error in the motion for a new trial.
It is contended by the appellant that the court erred in not permitting Dr. Gamble, the physician who attended M. Tonkel, and who was the railroad physician, to testify as a witness in this case. We think the court correctly ruled that Dr. Gamble was incompetent, and in also ruling that the X-ray picture was incompetent because made for the use of the physicians, and was a part of the information acquired by the physicians in attending the patient.
We think, however, that the court was in error in granting the three instructions quoted above, peremptorily instructing the jury that M. Tonkel was guilty of gross contributory negligence. The statement offered by Tonkel in evidence and received by the court is to be taken as an entire statement, and it appears therefrom that he did not hear the bell ringing; that he looked right and left, and did not see the train or engine. Evidence as to contributory negligence should have been submitted to the jury on proper instructions. It is true that if the complaint was as to the inadequacy of damages allowed, on proper instructions, it would be necessary to make a motion for a new trial. The errors in giving instructions may be assigned, and if they contributed to an inadequacy of damages the judgment would be reversed. In Coccora v. Light Traction Co., 126 Miss. 713, 89 So. 257, it was held that where such errors contributed to the inadequacy of the verdict, the judgment would be affirmed as to liability, and reversed and remanded for trial as to damages alone. That case is applicable and controlling here, because liability was established, on competent evidence, and there is no cross-appeal as to liability. It is clear that the contributory negligence instructions above referred to contributed to the amount of the verdict being small. It may be that the jury would find that the engineer was guilty, on proper instructions, and if, in the exercise of their discretion, in apportioning damages between negligence, on the part of the defendant, and contributory negligence, on the part of the plaintiff, and there were proper instructions, their verdict might not be disturbed.
The judgment as to liability will be affirmed, but the judgment will be reversed as to the amount of damages allowed, and the cause will be remanded for a new trial for damages alone.
Affirmed in part, and reversed in part.