« ForrigeFortsett »
and enables them to determine the nature and , veyed, and as to which no question of error character of the injury better than to receive it can arise. in a secondary way, as it must be described by 8. Error is assigned upon the refusal of the witnesses.' The following cases show the court to give instructions asked by the defendtrend of the authorities touching this question: ant. So far as they announced correct prinLangworthy v. Green Twp. 95 Mich. 93; Ed. ciples of law, they were embodied in the wards v. Three Rivers, 96 Mich. 625; Lanark court's charge. The third instruction asked v. Dougherty, 153 III. 163; Carrico v. West Vir- was properly refused, because it assumed that ginia, C. & P. R. Co. 39 W. Va. 86, 24 L. R. plaintiff knew the crossing was unsafe, and A. 50; Sioux City & P. R. Co. v. Finlayson, knew of the ditch, and knew that it was im. 16 Neb. 578. 49 Am. Rep. 724; State v. Wien- prudent to attempt to pass over the crossing. ers, 66 Mo. 29; Louisville, N. A. & C. R. Co. There was no evidence justifying such an in v. Wood, 113 Ind. 548, and 578; Whart. Crim. struction. It is said the damages allowed are Ev. 312; 1 Best, Ev. Morgan's ed. 307; Abbott, excessive. In view of a retrial, we need not disTrial Ev. 599; 25 Cent. L.J. 3; 15 Cent. L. J. 2 cuss that question. Many other questions are Mulhado v. Brooklyn C. R. Co. 30 N. Y. 370; discussed by counsel. We have examined the King v. State, 100 Ala. 85; Richmond & D. R. points made, and discover no error except as Co. v. Childress, 82 Ga. 721; Hatfield v. St. beretofore pointed out. Paul & D. R. Co. 33 Minn. 130, 53 Am. Rep. Because of the refusal of the court to permit 14. He would be a bold man who would as the measurements asked for, the judgment is sert tbat the evidence of experts is in all cases reversed. valueless. The testimony of medical men in the case at bar touching these measurements, a Robinson, J., dissenting: matter not resting in opinion at all, but capable I cannot assent to the fifth division of the of physical demonstration, is in direct contra- foregoing opinion. None of the authorities diction, and is well calculated to shake one's cited in its support appear to me to require the faith in the reliability of experts. In the inter- i conclusion reached. The larger number of est of attaining justice these measurements them merely bold that in a case involving inshould have been taken before the court and juries to a person it is proper to exhibit the injury. We do not hold that in all cases, and juries to the jury, and do not treat of compulas a matter of right, one party may require the sory, but of voluntary, examinations. Of the injured party to expose the injured part of his cases cited Ring v. State, 100 Ala. 85, is the person to the jury. But when such exposure only one wbich involved the compulsory examis in no way irdelicate, and seems to be essen- ination of the alleged injuries of a person in tial in order that the jury may be properly tbe presence of the jury. In that case a witand correctly advised as to the material factness testified that the defendant shot him on which is in dispute, it is not only the right of the arm, and the defendant, in cross-examinathe court 10 order such exposure and examination, offered to exhibit the arm to the jury. tion of measurement of the injured part on the The state objected, and the objection was susrequest of a party, but its duty so to do. As tained. It was beld on appeal that the court we have said, the condition of this foot and erred in sustaining the objection, and in that ankle was material as bearing upon the ques-connection the fact was noticed that no question tion of the permanency of the injury, and the was raised by the witness, court, or counsel court erred in not ordering the measurements as to the delicacy of the proposed exhibition; made as reqnested.
that the arm could have been shown to the jury 6. Complaint is made of the second division without offense to the modesty or delicacy of of the court's charge. It is in substance the feeling of the witness, of the court, or of the same as was given on the former trial, and persons present in the court-room; and that in which we held good when the charge was con view of the conflicting testimony as to the disidered as an entirety. While we do not think rection from which the shot was fired it might tbat the jury could have been misled to de- bave afforded the jury valuable aid in deterfendant's prejudice by the statement of the mining vital questions. In Hatfield v. St. Paul law therein contained, in view of other parts & D. R. Co. 33 Minn. 130, 53 Am. Rep. 14, of the charge, still, as this case for other rea also cited in the majority opinion, the plaintiff sons must be reversed, it is proper to say that sought to recover for personal injuries which on a retrial the court should avoid the state. sbe testified caused her to limp in walking. ment found in this division of the charge to The defendant requested the court to direct the effect that it was the defendant's duty to her to walk across the court-room in the preskeep its walks in "a safe condition" for public ence of the jury, but the court declined to do travel. Defendant's duty in that respect is so. That ruling was sustained on appeal. 10 use reasonable and ordinary care. It is not The supreme court held that a trial court has an iosurer of the absolute safety of its walks the power, in a proper case and under proper and crossings. The law in this respect was circumstances, to direct a person to do in the correctly stated in other divisions of the charge. presence of the jury a physical act that will
7. Complaint is made of the use of the word illustrate or show the character of the injuries "pitfall” in the tenth division of the court's of which he complains, but that the court charge to the jury. Technically speaking, the very properly refused to direct the plaintiff word means a trap set to ensnare the unwary. to exhibit herself to the jury and bystanders The court used 'it as describing the bole into by walking across the room." It was said which plaintiff fell. While we think the court such an act would only bave enabled the jury used the word in a different sense, still it to determine a fact which was shown by un. would be better to use a word or words am- contradicted evidence. Whether a person ply expressing the thought intended to be con may be compelled, against his will, to submit
to an examination of personal injuries, is a sacredness of the person, a right to be free matter in regard to which the authorities are from physical restraint or compulsion, which in conflict. In Union P. R. Co. v. Botsford, 141 will be interfered with only for reasons of conU. S. 250, 35 L. ed. 734, the power of the trial trolling importance. Until the contrary is court to order the plaintiff, who was seeking shown, the rulings of the trial court must be to recover for personal injuries, to submit to regarded as correct, and we are required to inan examination by a surgeon, was denied. dulge in all reasonable presumptions that they See also McQuigan v. Delaware, L. & W. R. are correct. When Mrs. Hall was asked to Co. 129 N. Y. 50, Id., 14 L. R. A. 466, and remove ber shoes and stockings and submit to note. The right to order such an examination measurements in the presence of the jury, was affirmed by this court in Schroeder v. Chi- the testimony which had been introduced cago, R. I. & P. R. Co. 47 Iowa, 375, but that showed that she had submitted to physical case did not involve the right to compel a pub- examinations conducted by medical experts lic examination before the jury. The author on behalf of the defendant two years or more ities which sustain the right of trial courts to before the trial, and again on the day of the order the pbysical examination of persons trial, and that but two of the four physicians whose condition is the subject of controversy who had examined her for the defendant at hold that the courts bave a large discretion to the time of the trial had been called as witgrapt or refuse such orders, and that their ac
There was no suggestion that she tion will not be disturbed unless the discretion had refused to submit to any private examinahas been abused. Thus, it was said in Hat. tion which the defendant desired to make. field v. St. Paul & D. R. Co. supra, in regard Dr. Speaker had testified for her that he was to the order therein sought, that "it is evident, present when Dr. Evans measured her feet on from the very nature of things, that the pro- the day of the trial, that the left or injured foot priety of such an order must usually rest was ļ inch larger at the ankle and between largely in the discretion of the trial court, and that and the toes than the other foot, and tbat it would only be in case of a plain abuse of he thought the left leg 6 inches above the ankle such discretion that we would interfere.” In was of an inch larger than the right leg at Richmond & D. R. Co. v. Childress, 82 Ga. 721, the same distance above the ankle. Dr. Evans it was held that trial courts had the power to had testified that the left foot was ļ an inch order the physical examination of persons al larger than the right at the middle joint leged to have been injured, “aud that in each above the ball of the foot and at the ankle, and case it was to be exercised, or not, according that the left leg 6 inches above the ankle was to the sound discretion of the presiding judge." $ of an inch smaller than the right. Dr. SaunIn Shepard v. Missouri P. R. Co. 85 Mo. 634, ders had testified that this measurement, on the the court said of orders for such examinations day of the trial, showed that the left leg of the tbat it was inclined to hold that they might be plaintiff 6 inches above the ankle was smaller made, “but not that a party bas an absolute iban the right, but he did not state wbat the right to have such a personal examination. difference was. Dr. Eslick had answered a It is a matter in wbich the court has a discre- hypothetical question, but did not testify to any tion which will not be interfered with unless personal knowledge of the plaintiff's feet. manifestly abused.” See also Stuart v. On the part of the defendant, Dr. Hews had Havens, 17 Neb. 211; Atchison, T. & S. F. R. testified that measurements of the plaintiff's Co. v. Thul, 29 Kan. 475, 44 Am. Rep. 659. feet had been made that day in the presence Before a court will be authorized to order the of himself, two physicians who had testified physical examination of a witness, the neces. for the plaintiff, three other physicians who sity of the examination to a just determination were witnesses for the defendant, and attorneys of the cause must be shown. Siour City & P. for the parties; that there was a difference be. R. Co. v. Finlayson, 16 Neb. 578, 49 Am. Rep. (tween the feet and legs of the plaintiff at one 724; Gulf, C. & S. F.R. Co. v. Norfleet, 78 Tex. point of measurement, but that he had forgot324; International & G. N. R.Co.v. Underwood, ten which one, of te of an inch, and be did not 64 Tex. 466. When a physical examination is state which foot or leg was the larger. Dr. ordered, care should be taken to protect the per- Martin had testified that he saw the measureson examined from indignity, and no indelicate ments described by Dr. Hews, and that they exposure of the person not absolutely neces- showed the feet of the plaintiff to be of the same sary should be required. Especial care will size, and that the left leg 6 inches above the be taken to avoid wounding the feelings of ankle was to of an inch larger than the rigbt. modest and sensitive females. Richmond & D. This was the sbowing made with respect to R. Co. v. Childre88, and Shepard V. Mis the measurements when Mrs. Hall was resouri P. R. Co. supra. Such an examination quested to make the exhibition of herself and will not be ordered in the presence of the jury, submit to the measurements in question. Dr. where it would require an indecent exposure Mullarky and Dr. Young, who it appeared had of the person.
1 Thomp. Trials, $ 861; 25 assisted in making the measurements, bad Cent. L. J. 7. And an unnecessary exposure not testified, and the defendant gave no reaof that kind should not be permitted by the son for not having called them. As they were court, even though no objection be made. afterwards examined for the defendant, we Brown v. Swineford, 44 Wis. 285. Very few may presume that they were present in court, of the cases which involve compulsory (phys- and that the court knew that the defendant ical examination refer to those which were, or had not exhausted its testimony in regard to were designed to be, made in open court in the measurements. The question which they the presence of the jury. As a rule they re were designed to settle was not controlling. late to private examinations only. All author and was one of many involved in the case. ities which treat of the subject recognize a Much testimony had been given in regard to the anatomy of the foot and ankle, the rupture district court was clothed is shown. The opinof tendons and ligaments, electrical experi- ions of the majority, while disclaiming the ments to ascertain the nature and extent of the adoption of a rule applicable in all such cases, injuries in question, besides the direct testimony does, in effect, hold that the district court had of the plaintiff and others in regard to her inju no discretion, and that in this and all similar ries and sufferings. Mrs. Hall is described as cases the defendant may, as a matter of right, rather fleshy," and a difference of balf an inch require a woman whose injuries are in question io measuring the circumference of her feet and to partially disrobe herself in the presence of limbs might easily be made by different per the court, jury, members of the bar, and possons, and observers be unable to detect any sibly a court-room full of bystanders, and raise errors in the measurements. It is not at all her garments sufficiently high to permit each of probable that measurements made in the pres- the twelve jurors to see her legs measured 6 ence of the jury would have aided it materially inches above the ankles, and that this may be to reach a verdict. It is by no means cer- done even though other evidence is at the comtain that such measurements would not have mand of the defendant, and at hand, which confused rather than helped the deliberations may show that the exhibition is wholly unnecesof the jury. The request of the defendant was sary. I cannot assent to such a holding. It that Mrs. Hall remove her shoes and stockings may be further said that, after the court in the presence of the jury, and, we may pre refused the request of the defendant, the latter sume, before a large audience of bystanders in called Dr. Saunders, who had testified for the a crowded court room, for the single purpose plaintiff, and showed by him that he was presof having her feet and legs measured in such a ent when the measurements were made for the manner that the jury might see it done. In defendant, and saw nothing unfair in them, my opinion, it was not only within the power, and nothing to show that they were not made but the duty, of the district court, under the at the places measured for the plaintiff. Dr. circumstances shown to exist, to refuse to Mullarky then testified, and corroborated fully allow the desired experiment to be made. As the testimony given by Dr. Martin in regard to it appears to me, it certainly would have been the measurements. Dr. Young testified that the indelicate, if not positively indecent, and would feet measured the same, and that he could have been shocking and repulsive to any modest not see any difference between them. The and sensitive woman. It was not shown to be plaintiff did not offer any evidence in rebuttal necessary. The defendant had been afforded on this branch of the case. It thus appears ample opportunity to make accurate measure that the preponderance of the evidence on that ments, and if its witnesses failed to make and issue was on the side of the defendant. I remember them the plaintiff should not suffer believe it has had a fair trial, and that it has for their negligence. Although she and her no just reason to complain of the judgment of attorneys did not offer as much resistance to the district court. the request of the defendant as they might well have made, yet it is evident that they were Granger and Deemer, JJ.: unwilling to make the exhibition desired, and We place our concurrence in the conclusion that they did not wish to prejudice their case of the majority opinion on the fact of the interby appearing to withhold evidence wbich was ference by the court without objection by the within their power to give. The court had a witness or counsel. It appears in the record knowledge of the plaintiff, and of the con- that the court, of its own motion, declined to ditions under which the experiment, if per- permit the examination. It seems to us the mitted, would have been made, which we can record limits our inquiry to that state of facts. not bave. The defendant bad not introduced There was nothing in the examination not all the evidence at his command. In my opin- entirely proper to take place in open couft if ion, no abuse of the discretion with which the the witness did not object.
SOUTH CAROLINA SUPREME COURT.
George F. LEITZSEY, Appt.,
where the notice was given fifteen days before suit was brought, and the complaint alleged injury up to the time it was filed. 2. A statute giving the trustees of a public canal power to raise the water in a river to a certain height by means of a dam, and providing that if in constructing the canal or developing the dam it becomes necessary to use private property, the board "shall have a right to acquire such right of way"in the manner now provided by law, requires the settlement of damages for flooding lands by the dam under the eminent domain law, and not by suit and tbe said river and the said branch and for puisance.
v. COLUMBIA WATER POWER COM
1. A demurrer to a complaint against a grantee of one who erected a dam for injuring land by maintenance of the nui. sance cannot be sustained for failure to state injury after notice to defendant of the nuisance,
NOTE.-The purposes for wbich a statute may also the case of Nunamaker v. Columbia Waterauthorize the fowage of land are the subject of a Power Co. (S. C.) post, note to Turner y. Nye (Mass.) 14 L. R. A. 487. See
ditch have been and now are prevented and 3. Failure to object to the raising of hindered from effecting the proper, natural,
water along abutting lands by a dam across and usual drainage of the said land; the said wa. river constitutes permission to do so within the ters are caused to percolate through, and waterprovision of a statute that in case any person per- log and water-soak 40 acres of the said land mits entry upon his land for the construction of lying on the said river; and in times of ordia public improvement without previous compensation he shall have a right to petition for nary fresbet the waters of the said river are the assessment of his damages, so that such rem- said 40 acres of the said land, depositing
caused to flow back upon and inundate the edy is exclusive.
thereon quantities of sand and other sterile
earth, all of which, prior to the commission of (October 17, 1896.)
the said grievances, and from time immemo.
rial, the said waters were not accustomed to A a
the Common Pleas Circuit Court for to the grievances hereinbefore complained of Richland County in favor of defendant in an the said 40 acres of the said land were of unaction brought to recover damages for the al usual and great fertility, and were not subject leged wrongful flooding of plaintiff's land. to overflow by the waters of the said river so Affirmed.
as to destroy or materially injure the crops The first cause of action set out in the com- growing thereon, and that since the commission plaint was as follows:
of the said grievances, and by reason thereof, (1) That the defendant was at the times here the said lands have become liable to frequent ipafter mentioned, and now is, a corporation and prolonged freshets, overflowing and inueduly created and organized under and by vir- dating the said lands to such an extent as to tue of the laws of the said state. (2) That the destroy the crops growing thereon, and wholly plaintiff was at the time of the commission of to deter and prevent the use of the said lands the grievances hereinafter set forth, and now for agricultural purposes, or for any valuable is, the owner in fee and in possession of a purpose whatever. And the plaintiff further tract of land containing 420 acres, more or avers that by reason of the said grievances so less, lying on the right bank of Broad river, as aforesaid caused by the keeping up, mainin the said county and state, bounded on the taining, and continuing of the said dam by the north by lands of F. W. Wagener, on the east said defendant as aforesaid, the said 40 acres by the said river, on the south by lands of the of land, which prior thereto were reasonably state penitentiary, and on the west by the worth $75 per acre, bave become water-logged, Newberry road, separating this tract from unproductive, uncultivable, and wholly valuelands of the estates of Ëli Huffman and less to the plaintiff, to the great nuisance and Isaiah Haltiwanger, and also by lands of the injury of the plaintiff, and to his damage estate of Godfrey B. Nunamaker, and that $4,000. (5) That on the 2d day of August, running across or near to the said land, leading 1894, the plaintiff gave the defendant notice of into the said river, is a branch and a ditch, by the said nuisance, and then requested the demeans of wbich, and the said river, the said fendant to remove the same, but tbat the said land was, prior to the commission of the said defendant has failed and refused so to do. (6) grievances, and from time immemorial, ac- That the said keeping up, maintaining, and customed to be drained for agricultural pur continuing of the said dam have heretofore been poses. (3) That on or about the day of and now are without the consent of the plaintiff;
1889, the board of trustees of the Colum- that the said plaintiff has received no compenbia Canal, a corporation duly created and or sation for the injury sustained by him as hereganized under and by virtue of the laws of inbefore set forth; and by reason of the premthe said state, raised and erected a dam, ises, the plaintiff is entitled to have, of and known as the "Columbia Canal Dam,” across from the said defendant, compensation in the the current of the said river, at a point a said amount of $4,000. short distance below plaintiff's said tract of The second cause of action set out was: land; that thereafter, on or about the 11th day |(1) That the defendant was at the times hereinof January, 1892, the said board of trustees of after mentioned, and now is, a corporation the Columbia Caval transferred and conveyed duly created and organized under and by rirto the said defendant the said dam,and all and tue of the laws of the said state. (2) Tbat the singular the property thereto appertaining, plaintiff was at the time of the commission of and that the said defendant has since been and ibe grievances hereinafter set forth, and now now is the owner and in possession thereof. is, the owner in fee and in possession of a (4) That since the said 11th day of January, tract of land known as Mickler's Island," ly. 1892, the said defendant has kept up, main-ing in, and surrounded by the waters of, Broad tained, and continued, and now maintains, river, in the said county and state, and being keeps up, and continues, the said dam as afore situated opposite to, and off from, a tract of said, so that by reason thereof the waters of land adjoining the tract described in the second the said river are raised 6 feet in the rhan- paragraph of the first cause of action hereof, nel thereof, and greatly increased in quan. known as "Swygert's Mill Tract," and that tity therein, and in the said branch and prior to the commission of the said grievances, ditch, and the free, natural, and accustomed and from time immemorial, the said river was flow of the said water, and of sand and other accustomed to flow past and by the said island sterile earth, through the channels of the without material injury thereto. (3) That on said river and of the said branch and ditch, or about the day of
1889, the has been and now is hindered and obstructed; I board of trustees of the Columbia Canal, a cor
poration duly created and organized under and the said defendant compensation in the said by virtue of the laws of said state, raised and amount of $2,000. erected a dam, known as the “Columbia Canal The demurrer was as follows: Dam," across the current of the said river, at a The defendant, the Columbia Water Power point below the plaintiff's said tract of land; Company, moves the court to dismiss the comthat thereafter, on or about the 11th day of plaint in this action on the ground that it ap. January, 1892, the said board of trustees of pears from the face of the complaint that the Columbia Canal transferred and conveyed neither in what is therein stated to be a first to the defendant berein the said dam, and all cause of action, nor in that which is stated to: and singular the property thereto appertain. be a second cause of action, does it state facts ing; and that the said defendant has since been sufficient to constitute a cause of action against and is now the owner and in possession thereof. this defendant. Both of said causes of action (4) Tbat since the said 11th day of January, objected to are insufficient, in this: That after 1892, the said defendant has kept up, main. it is alleged in the third paragraph of each of tained, and continued, and now keeps up, said causes of action that on the -- day of maintains, and continues, the said dam as -, 1889, the board of trustees of the Colaforesaid, so that by reason thereof the waters umbia Canal, a corporation duly created and of the said river are raised 6 feet in the chan- organized under and by virtue of the laws of nel thereof, and greatly increased in quantity said state, raised and erected a dam, kpown as therein, and the free, natural, and accustomed the 'Columbia Canal Dam' across the current flow of the water, and of sand and other sterile of the said river, at a point a short distance earth, through the channel of the said river, below the plaintiff's said tract of land, and and past the plaintiff's said land, bas been that thereafter, on or about the 11th day of and now is hindered and obstructed, and January, 1892, the said board of trustees of the said river bas been and now is prevented the Columbia Canal transferred and conveyed from effecting the proper, natural, and usual to the said defendant the said dam, and all. drainage of the said "land; the said waters and singular the property thereto appertainare caused to percolate through and water ing, and that the said defendant has since been log and water-soak the wbole of the said and now is the owner and is in possession tract of land, and in times of ordinary freshet thereof," it does not allege any pegligence or the waters of the said river are caused to want of care on the part of the board of trusflow back upon and inundate tbe said land, tees, or their grantee, either in the construction depositing thereon quantities of sand and other of the dam, or in its maintenance or repair, or sterile earth, all of which, prior to the com- that the defendant has done anything contrary mission of the said grievances, and from time to any contract or obligation arising out of immemorial, the said waters were not accus any agreement with the plaintiff with reference tomed to do. And the plaintiff further avers to the construction, maintenance, or repair of that, prior to the grievances herein before com- the said dam, and its effect upon the land plained of, the said tract of land was of un- claimed to be injured in the said cause of acusual and great fertility, and was not subject tion. The action brought by the plaintiff by to overflow by the waters of the said river so said complaint is a common-law action for inas to destroy or materially injure the crops jury to his freehold, or at least for compensagrowing thereon, and that since the commis- tion for the taking for the use of a public pur. sion of the said grievances, and by reason pose of a private property. The court will thereof, the said lands have become liable to take cognizance of the fact that, under the frequent and prolonged freshets, overflowing Constitution and laws of the state, Broad river and inundating the said lands to such an ex- is a navigable stream, and declared to be a tent as to destroy the crops growing thereon, public high way. The court is bound to take and wholly to deter and prevent the use of further judicial notice of the act of the general the said lands for agricultural purposes, and assembly referred to in said third paragraph, for any valuable purpose whatever. And creating the board of trustees of the Columbia the plaintiff further avers that by reason of the Canal, and all of its provisions,-the same besaid grievances so as aforesaid caused by the ing a public act, passed for a public purpose, – keeping up, maintaining, and continuing of and of the act of 1890 amendatory thereof. the said dam by the said defendant as afore. Taking such judicial notice, it appears: That said, the said tract of land, which prior tbereto under its provisions the said board of trustees was reasonably worth $100 per acre, has be had full authority, and were commanded and come water-logged, unproductive, unculti-directed, to erect said dam, and to flow back vable, and wholly valueless to the plaintiff, to the waters of the said navigable stream, and to the great nuisance and injury of the plaintiff, use private property in the construction and and to bis damage $2,000. (5) That on the 2d maintenance of the said canal and dam, and day of August, 1894, the plaintiff gave the de. that for the taking and use of such private fendant notice of the said puisance, and then property said act makes provision for the requested the defendant to remove the same, condemination of such lands, and a remedy but that the said defendant has failed and re- to the owner to secure compensation for the fused so to do. (6) That the said keeping up, taking and use of such private property. maintaining, and continuing of the said dam That the court therefore must hold that said by the said defendant has heretofore been and remedy is exclusive unless the board of trusdow is without the consent of the plaintiff; tees exceeded their authority, or did not conthat the said plaintiff has received no compen. form to such provisions. There is no allegasation for the injury sustained by him as here. tion in the complaint that they exceeded their ipbefore set forib, and by reason of the prem authority, or did not conform to such provi. ises the plaintiff is entitled to have of and from sions; but it is alleged in paragraph six of each.