ILLINOIS CENT. R. CO. v. GRIFFIN

ILLINOIS CENT. R. CO. v. GRIFFIN. (Circuit Court of Appeals, Seventh Circuit. May 3, 1897.) No. 362. 1. Carriers—Dangerous Premises—Invitation to Enter Baggage Room. Where plaintiff, the owner of several pieces of baggage in a baggage room at a railway station, told the baggage master that a part of it was wanted, and the baggage master, upon going in and leaving the door open, was followed by plaintiff, who while there was injured, the jury was authorized to find that plaintiff entered the room at the invitation and for the benefit of the railroad company. , 2. Same—Defective Premises. Where the owner of baggage enters a baggage room at a railway station at the invitation of the baggage master, for the purpose of pointing out the baggage wanted, and is injured by the falling of a defective door in an attempt to open it for the purpose of asking a street-car motorman to wait, the questions of negligence and contributory negligence are for the jury; there being testimony tending to show defendant’s knowledge of the defect, and testimony—contradicted by plaintiff—tending to show she was told not to open the door. 3. Trial—Motion for Peremptory Instruction—Remarks of Court. While the better practice is to send the jury out of the room when a motion for peremptory instruction is to he made, argued, or decided, there can be no reversal because of remarks of the court thereon in the presence of the jury, when there was no exception, and no request that the jury retire. 4. Same—Interrogation of Witnesses. It is in the discretion of the court to permit the plaintiff to he further interrogated as a witness after the motion for a verdict has been decided, and there can he no reversal therefor unless that discretion is abused. 5. Pleading and Proofs—Evidence as to Personal Injuries. Under a declaration alleging nervous prostration, and sensations of numbness and pain in certain parts of the body, as the result of personal injuries, the sympathetic affection of other parts of the body may be shown. 6. Damages—Physical Examination. A physical examination of one suing for personal injuries, by physicians to be designated by the court, cannot he compelled either before or. during the trial. 7. Trial—Inconsistent Charges. A party cannot complain of inconsistent charges where the inconsistency is between a proper charge and an erroneous instruction giyen on his request. In Error to the Circuit Court of the United States for the Western District of Wisconsin. The recovery in this case was for personal injury to the defendant in error, attributed to the negligent omission of the plaintiff in error to keep in safe condition a door to its baggage room at Madison, Wisconsin. There is little dispute about essential facts and circumstances, and, while the assignment of errors contains a large number of specifications, the question of chief importance is whether the court ought to have directed a verdict for the defendant. The passenger station of this company at Madison is between the railroad track, on the south, and Bedford street, on the north. The baggage room is at the east end of the station, and is separated from a waiting room by a partition. Its dimensions are 23 feet east and west by 17 feet north and south. There is on the south side of the room a sliding door, and on the north side a similar door, the jambs into which they lock being within a few inches of the wall of the waiting room. The doors are 7 feet and 7 inches high, 6 feet 3% inches wide, 2y2 inches thick at the edges, and made for the most part of yellow pine, in two thicknesses, “filled in on one side,” and “paneled on both sides.” They have rollers on the bottom, which run upon a small iron rail on the floor, and on the top each has a guide strip designed to run in a groove above. The locks are set entirely on the inside, and mortised in. There are no projecting handles, but depressions on each side serve as handles. In the depression on the inside of each door is a spring, which, when pressed upon, causes the catch or bolt of the lock to be lifted from the iron fastening in the jamb of the frame, whereupon, if the pressure be continued with sufficient force, the door will be pushed aside. From the outside the doors can be opened only by the use of a key. On the outside of each was painted “Baggage Room,” and in front of each was an incline made of plank “thinned off at the lower end, and reaching from the door sills out upon the platform.” The door on the south side alone was in customary use; that to the north, it is claimed, being “never used for delivering baggage,” and during the five or six years since it was put up not having been “used in any way, save only a dozen or fifteen times.” There is no other door or opening into the baggage room, excepting an interior window communicating with the waiting room. Extending entirely around the station building is a wide platform, flush on the south with the railroad track, and on the north with Bedford street. On the east and west, between the platform and Main and Washington streets, respectively, are open areas for the use of omnibuses, hacks, and the like. An electric street-car line, with a terminal at Washington street, runs on Bedford and Main streets to Capitol Park. Lucia B. Griffin, the defendant in error, unmarried, about 30 years old, an elocutionist by profession, and without previous knowledge of the place, arrived at the station at 7:45 o’clock p. m. of July 30, 1894, with three pieces of checked baggage. A hand satchel and bundle she deposited, on arrival, in the ticket office of the company for safe-keeping until the next day, and, without claiming the checked baggage, went into the city for the night. The unclaimed baggage, pursuant to a rule of the company, was placed in the baggage room for safe-keeping. About 1 o’clock p. m. of the next day, Miss Griffin returned to the station by a street ear, from which she got off at Washington street. The motorman promised to wait a couple of minutes, and to stop his car for her opposite the baggage room. She was able promptly to get her satchel and bundle, but as much as 10 minutes passed before the baggage master, Katter, who was- at the freight depot, arrived. At the door of the baggage room she gave him her checks, telling him, as she testified, that she wanted part of the baggage. He unlocked the door, and, leaving it open behind him, went to the baggage, on the north side of the room. Following him in, she stopped at the desk near the waiting room window; and then, according to her own testimony, wnile Katter was engaged with the baggage she went to open the door on the north,'to see if the ear was waiting, to ask the motorman to wait, expecting to find him opposite the door, and the door, when she had pulled it back about five inches, fell upon her. While pulling the door open, she heard Katter “say something about being a big door for me to open,—something like that. I was a' small person to open a big door,—something like that. I do not remember the exact words.” Katter testified: That he had pulled off one check and laid it aside, when she asked if she could not go through that door,—the one that fell,—to which he answered: “No; you can’t open that door. I will take your baggage around this way.” That she then “started and took hold of the door with her left hand, and slipped and turned around; and the first time she didn’t move the door, and she turned right around and took hold with her both hands, and just moved it about four or five inches, and I see the door coming over on her.” After the refusal of the court to direct a verdict for the defendant, the plaintiff, by permission of the court, was recalled, and, in response to the question whether Katter told her not to go out of the door, answered: “I think you asked me before, and I told you that I was never warned at all anything about the door,—not even an intimation that the door was unsafe. There was nothing like a warning in any way.” And in response to further questions she testified that Katter did not tell her not to go out of that door; that she did not say anything to him about opening the door. Thereupon she added: “I am very much accustomed to waiting on myself. I never ask anybody to open doors for me. I am not accustomed to have a gentleman go with me to open doors. * « * Never dreamed of there being the least doubt but that I could open it. I have opened these baggage-room doors * * * in other places.” Proof was made, and not disputed, that about a month before the occurrence in question the other door to the baggage room had fallen in the same manner,—the fall being due in part to the wearing of the iron rail, but mainly to the shrinkage of the wood of the door and to the settling of the building,—and that a repetition of the fall was guarded against by means of a wooden cleat fastened upon the grooved strip, and extending below the end of the door on the inside. Concerning the door in question, the answer alleges that, “owing to the shrinkage of the wood and settling of the building, the door, when partly opened, could be pulled out of the groove,” but that the shrinkage and settling were “only just sufficient to permit the door when pulled sidewise, and not endwise, to slide from the groove.” It is not alleged that the liability of the door to be pulled over was unknown to the plaintiff in error. B. J. Stevens (James Fentress, of counsel), for plaintiff in error. John M. Olin and Harry L. Butler (J. 0. Mabry, of counsel), for defendant in error. Before WOODS, JERKINS, and SHOW ALTER, Circuit Judges. Rehearing denied June 17, 1897. [MAJORITY — WOODS, Circuit Judge,] WOODS, Circuit Judge, after making the foregoing statement, delivered the opinion of the court. The primary question, upon which all other questions of importance in this case turn, is whether the railroad company was under any duty to the defendant in error to make the baggage room a safe place. The contention of the plaintiff in error is that while railway waiting rooms, platforms, and the approaches thereto, are places to which the public having business with the railway company are invited, a baggage room is necessarily a private place, where the one who goes without invitation, express or implied, is a trespasser, or at best a mere licensee, to whom no duty is owing, and that in this case, there being no pretense of an express invitation to the plaintiff to enter the room, there was no implied invitation, because she entered solely for her own convenience; the proper place for receiving her baggage being at the door or on the platform outside, and her presence inside being in no sense to the advantage of the company. We do not agree that a baggage room at a railway station, when open for the reception and delivery of baggage, is a private room, as against owners of baggage who are permitted to enter. In its relation to the public, the company is represented by the baggage master or other employé whom it puts in charge of the room; and, if an owner of baggage enters upon the invitation or by permission of the baggage master, it is the invitation or permission of the company; and whether, in a given instance, one who goes in by permission does it only for his own benefit, or for the advantage of both parties, must ordinarily be a question for the jury. If thereby the baggage master is aided in the performance of his duties or labors, the company which he represents is benefited. In this case the baggage master was told before he opened the door that a part of three pieces of baggage was wanted, and it was certainly to his convenience that the part or piece desired should be pointed out without his being required to bring the three pieces to the door or platform; and when he passed in, leaving the door open and giving no admonition to Miss Griffin to stay out, it was, to say the very least, a question for the jury whether she was not invited to go in. In Bennett v. Railroad Co., 102 U. S. 577, 584, the court quotes with approval the following proposition 'from Campbell on Negligence: “The principle appears to be that invitation is inferred where there is a common interest or mutual advantage, while a license is inferred where the object is the mere pleasure or benefit of the person using it.” The evidence in that respect being sufficient to support the verdict, it must be assumed, for the present purpose, that the entrance of the defendant in error into the baggage room was at the invitation and for the benefit of the railroad company, as well as for her own convenience; and, that conceded, the evidence which tended to establish negligence on the part of the defendant, and freedom from fault on the part of the plaintiff, was such as to forbid the withdrawal of the case from the jury. Other questions merit only a brief statement. The record shows no exception to the remarks of the court in the presence of the jury upon the presentation and consideration of the motion for a peremptory instruction in favor of the defendant; but we are of opinion that, if excepted to, the remarks were not such as to justify a reversal of the judgment. The better practice would be to send the jury out of the room when such motions are to be made, argued, or decided. It does not appear that the plaintiff in error moved or requested that the jury be directed to retire. It was in the discretion of the court to permit the plaintiff to be further interrogated as a witness after the motion for a verdict had been decided, and it does not appear that there was an abuse of discretion for which the judgment should be reversed. The testimony which the plaintiff was allowed to give of the manner in which different parts of her body were affected was not outside of the issue, nor otherwise improper. The declaration charges nervous prostration, and sensations of numbness and pain in the back of the neck, in the left side, and in the arm “and other parts of her body”; and even if the averment were less broad it would not follow that her statements touching the condition of her uterus and the nerves of her leg would not have been competent. The sympathy of one part of the body with another is involved in a scientific determination of the effects of injuries; and, on such an inquiry, whatever in the light of science is significant, in the eye of the law is competent. There was no error in permitting a physician to answer the question: “Have you seen sufficient of the plaintiff here, since the trial commenced, to-be able to state, as a physician, whether there is or is not an abnormal nervous condition present in her case.” If, as suggested, the question contains phrases of doubtful meaning, it was the part of a cross-examination to clear the doubts away. It is objected to certain hypothetical questions that they were-based in part upon asserted physical conditions claimed to have-been discovered at an examination of the plaintiff made pending, and late in the progress of, the trial, which conditions were not. «barged in the complaint, and therefore were not pertinent to the issue, and in part upon the fact that, two months before the injury-in the baggage room, the plaintiff “took part” in a railroad collision, as a result of which she suffered insomnia, headache, nervousness, and other hard-worded disorders and irregularities, like those ■charged in the complaint; and it is contended that if these were other and different from the conditions which the witness discovered at the physical examination, so, also, the conditions described an the complaint were different, and the allegations and proofs do not correspond. These objections are not tenable. When the proof shows causes, outside of those alleged, for the symptoms of .suffering, it is proper and necessary that the jury shall be informed, if possible, to what cause the suffering is justly attributable, and to that end it is necessary that the hypothetical questions cover the ■entire field of inquiry. The court did not err in refusing to authorize and compel a physical examination of the plaintiff by physicians to be designated by the court. Railway Co. v. Botsford, 141 U. S. 250, 11 Sup. Ct. 1000. 'The reasoning of that case forbids a compulsory examination during the trial equally with one in advance of the trial. Error cannot be assigned upon questions put to a witness, when it does not appear what answers were elicited. Unless the answer is objectionable, it does not matter, ordinarily, what was the question. The exception should therefore go to the answer, and not to the question alone. The alleged' inconsistencies between instructions given at the request of the plaintiff in error and the charge of the court to the jury do not go to material questions, and if they did there would 'be no available error, if the court’s charge was right. If the court, of its own motion, gives inconsistent charges, there may be an assignment of error upon the one which is wrong, or perhaps on the fact of inconsistency; but, where the inconsistency is between a -proper charge and an erroneous instruction given upon request, the requesting party may not complain. The charge here complained •of is in harmony with the views which we have expressed upon the •motion for a verdict, while the special instructions refused are inconsistent with those views. A further statement of them is therefore unnecessary. The judgment below is affirmed.