W. D. McClain Judgment

The following summary, taken from The Southwestern Reporter [Volume 66, February 3 - March 31, 1902, page 391], describes the Court of Appeals judgment in the case of W. D. McClain vs. the Louisville and Nashville Railroad in the case of the train wreck at Gap in Knob on 23 Dec 1899.

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1. As plaintiff had been fully examined by two surgeons of defendant at the time of the injury complained of or shortly thereafter, and was examined by three other physicians at different times, and there was little conflict in the testimony of the five physicians, there was no substantial error in overruling defendant's motion for a personal examination at the time of the trial, or in refusing to allow proof that plaintiff had declined to submit to a further examination.

2. The court properly instructed the jury that they might award punitive damages if there was gross neglect, there being sufficient evidence to authorize the submission of that question.

3. As defendant, by its answer, denied that plaintiff was injured at all, the burden of proof was upon plaintiff.

Appeal from circuit court, Bullitt county.

"Not to be officially reported."

Action by W. D. McClain against the Louisville & Nashville Railroad Company to recover damages for personal injuries. Judgment for plaintiff, and defendant appeals. Affirmed.

Fairlelgh, Straus & Eagles and E. W. Hines, for appellant Halstead & Yewell, for appellee.

HOBSON, J. Appellee, McClain, was a passenger on one of the defendant's trains on December 23, 1899, which, while standing at Gap in the Knob, a station in Bullitt county, was run into by a heavy freight train following it. Appellee was in the rear of the train, and was thrown by the collision from the car in which he was sitting out upon the track, falling upon his back, and sustained injuries causing an inflammation of the nerves near the lower end of the spine. He was confined to his bed for some days by the bruise, which was quite painful, and brought this suit to recover for alleged permanent injuries. He recovered a judgment for $1,500. The collision is the same referred to in the case of Railroad Company v. Simpson, 64 S. W. 733, and Same v. Carothers, 65 S. W. 833, recently decided, and the facts of the occurrence are set out fully in those opinions.

Appellant filed the affidavit of its counsel, and moved the court to require the plaintiff to submit to a personal examination before the trial of the case. The court overruled the motion. Appellant then on the trial proposed to prove to the jury that the plaintiff had objected to the examination, and the court refused to admit the evidence. It is provided by the Code of Practice that a judgment cannot be reversed unless for an error to the substantial rights of the party complaining. It is discretionary with the court whether he will order a personal examination, and this court will not reverse unless there is an abuse of discretion, and it may fairly be concluded that the rights of the party complaining were substantially prejudiced. The appellee had been examined fully by two surgeons of the appellant at the time of the accident, or shortly thereafter. In February following he was examined by a distinguished physician in the city of Louisville, whose deposition was taken in the case. He had also been examined at different times by two other physicians. The testimony of all five of these physicians was introduced on the trial, and there was little conflict in their statements. The testimony of the physicians leaves no room for doubt that the appellee was badly bruised, that his nervous system was shocked, and that the trouble with him after the effect of the bruise passed off was due to the inflammation of the nerves, or neuritis. This condition is not seen on the surface, and the trouble is a subtle one. We are unable to see from the evidence that a further examination made at the trial could have revealed anything that was not shown by the evidence before the jury. It was clearly shown the spine was uninjured, and that the trouble was exclusively in the nerves. We therefore conclude that there was no substantial error In overruling the motion for a personal examination, or in refusing to allow proof before the jury that the plaintiff had declined to submit to a further examination, because he had a right to stand on what he conceived to be a sufficient showing as to his injuries, and to submit the question to the judgment of the court. Electric Line Co. v. Allen (Ky.) 44 S. W. 80; Distilling Co. v. Riggs (Ky.) 45 S. W. 99.

The proof in the case was amply sufficient to justify submitting the question of gross neglect to the jury, and, if there was gross neglect, punitive damages might be awarded.

The appellant, by its answer, denied that plaintiff was injured at all. The injury to him was the gist of the action. The burden of proof was therefore upon him, and the court properly so held on the trial.

The instructions of the court properly submitted the issues in the case to the jury, and on the whole record we see no substantial error to the prejudice of appellant. The verdict is not excessive under the evidence.

Judgment affirmed.

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