#### St. Louis-San Francisco Railway Company v. Murphy.

Opinion delivered March 23, 1925.

1. Damages — physical examination — discretion op court.-— , • Where plaintiff . suing- - the railroad company for . personal , injuries hiad submitted to -a personal examination by two railroad doctors, it was not an abuse, of discretion to deny defendant’s request during the trial for further examination by other - doctors, including an x-ray of plaintiff’s spine, such-request *331not being ■ timely, and the x-ray. not calculated* to disprove the prediction of one of plaintiff’s physicians that .tuberculosis would probably develop from the injury to defendant’s spine.

2. Trial — assumption of fact. — An instruction authorizing the jury in a personal injury action to assess damages for future pain, and suffering if any held not objectióiiáble'inform as' ássümi-irtg that he would continue to endure paid in the future. .'- •

3. Trial — insufficiency’of general objection to instruction.— Objection to an instruction .that it assumed that, plaintiff’s mental suffering would continue in the future, should, be specific.

4. Damages — personal injuries — amount.—A, verdict of $12,000 awarded to an experienced brakeman, earning $1,500 annually and in line of promotion, for injuries which incapacitated }nm to work; necessitating the amputation' of- three toes ’and permanent injuries- to his spine, -with probability of ' developing , tuberculosis, held not- excessive. ' . •

Appeal from Crawford Circuit Court; James Cochran, Judge;

affirmed.

W. F. Evans and Warner, Ear din & Warner,-. for appellant.

Pace & Davis, for .appellee.

Smith, J.

. Appellee was employed by the appellant

railroad company as a brakeman on a freight train,1 and-, while climbing to- the top of a car, a grab-iron or a step on the side-of the oar pulled loose, and he fell-, to the ground, and one of his feet fell under the ■ wheels, -of' the caí, which- was in motion, and -his foot was crushed, and it became necessary to amputate his great toe and two adjoining toes.

■ In the complaint-Which appellee filed in his suit-to recover damages to compensate the-injury he had sustained as a result of his fall, he alleged that he was injured as follows: “Left foot mashed and crushed, .necessitating the amputation of three of his toes, leaving his foot stiff and immobile, the tendons and lighments thereon torn and raptured, leaving the foot- in a useless condition; injury to the spine, spinal column, and the nerves attached thereto, shocking his nervous' system, leaving the plaintiff wholly incapacitated to do of perform manual labor of any kind.”

*332• .At the trial, when appellee was-called" as ’¡a-witness in his Own. behalf, he' removed 'his shoes and socks from both feet, so that the jury might compare 'them ! and examine the injury. He claimed thatj ás'a r.esul|.qf his injury, he had become practically club-footed :by ,being required to walk on the. side of bis foot, and he exhibited the calloused condition which had-developed on his foot as a result of this necessity. •' i' • ’

Appellee was injured oh March" 4, 1923, and was carried the next day tó‘ the company’s hospital, 'where he remained for thirteen.or fourteen weeks, and' was released in July, but hé returned, to the. hospital for further treatment, and was finally discharged- in. August. He testified that his foot was still sore and' pained him, and that he could not walk fast, and .that his Loot turned when he stepped on a rough surface. 'He also testified that his back was injured and continued.to hurt him, and that he had become very nervous.

After appellee and two physicians who were called as witnesses in his behalf had testified, the appellant company asked that two surgeons representing. it be allowed to examine appellee, and. this permission , was given, and appellee was examined by both; surgecins, who were members of the hospital staff where - appellee had -been a patient. ' 1 ■

The first physician who testified in behalf of appellee was Dr. Pettus, of Little Bock, and he testified -that -there \yas a loss of sensation over a small area inside the’ foot. That the big toe had' been amputated close to where it joined the foot and-two. adjoining toes about midway of the last two joints, and that the tendons which control the foot land are attached to the big. toe had been’ so injured that appellee walked on the side of his foot, and that, as ;a surgeon, he would advise-amputation of the foot. Dr. Pettus also-testified that appellee’s spine had been injured, and that the reflexes were, exaggerated, and that appellee suffered -pain and.would continue to do so, until the -cause was found and. removed, and that pressure on appellee’s back caused excruciating pain, and *333would accelerate the pulse from a normal beat to;120:dn about a minute’s time; that this was a condition over which appellee had no. control; and Dr. Pettus expressed the opinion that appellee’s injury was permanent,, and would grow worse.

Dr. Parchman, of Van Burén, was also called as an expert witness on behalf of appellee, and he too described appellee’s injuries, and concurred in the . opinion expressed by Dr. Pettus that appellee’s .condition would grow worse. In describing appellee’s injuries Dr. Parchman said: “I think the man has an injured spinal columin. Necrosed bone, or has become infected with tubercular bacilli. ”

After making this answer, the presiding judge spid: “Please answer that question again. I did not just catch your answer.” And the witness replied: “I said that 85 per cent, of the injuries to the spinal column result in tuberculosis, which I think is likely to occur to this man by reason of.this injury.”

This question and answer were objected to on the ground that there was “no allegation in the complaint that there was any such injury to his spinal column.”

As has been ■ said, • appellee was examined by two surgeons who had treated him in the hospital. Appellee made no point that this testimony was privileged, .and these surgeons gave a history of appellee’s treatment in the hospital. They had made an X-ray picture of appel-lee ’s foot, and introduced this picture in evidence. They also testified that appellee made no complaint of injury • to his back while ,in the hospital, and had received no •treatment on that account. That they had examined his back, and could find no indication of an injured back except appellee’s statement that it caused him pain, and that their examination of appellee indicated that his back was normal. After testifying that.all the tests made by them, indicated that appellee’s back was normal and was. uninjured, and that they found no indication of tubercular trouble, they testified that an X-ray is the *334final test,, but that they had taken no X-ray because they ■did not, have an opportunity to do so. ■

Before the case was closed.the company called two other:physicians from Fort Smith", neither of whom had ever examined appellee. Permission was asked that these physicians from Fort Smith be allowed to examine appellee, and to have X-rays made. These physicians testified that it was ho 'test for determining the existence of a tubercular condition of the spinal.column to press oñ a" person’s back" to see whether that quickened his pulse. '

The trial was not concluded on the- day it .was begun, and, after the attendance of the Fort Smith physicians had been secured, counsel for the company: stated that he would like to have appellee pull off his shoes and exhibit his foot in the presence of these doctors. Objection was made to this request on the ground that appellee had already been examined by two doctors for the company, and, in overruling this request, the presiding judge ' said:' -“I am not going to-permit-any further examination of this man.” Counsel for the company said-: “We also ask that an X-ray picture be made' of his back.” In -overruling this request -the court said: ‘‘If' you had asked permission in 'time, I might have ■ granted it,- but .1 am not going to delay this case any longer.” An ■ exception was saved to the ruling and to the remark of the court. •

We think no reversible error was- committed in the ruling set out above. The complaint alleged that appel-lee’s back was injured, and this was notice that damages ' would be asked on that account. The court directed that -appellee submit to an examination at- the hands' of two doctors representing the company," and this examination ■ was made, and these doctors testified that they made no X-ray'examination because they had no opportunity to do ' so, but the request-to make this-last' examination was not ■ embraced in the request for permission to examine appel-'lee.

*335It vías not shown when or where' this X-ray’ examination could be made, and it does not appear ‘ what delay would have 'been entailed in the trial on that account. The remark of the eoúrt indicates there would havé been some delay, and the matter was within the discretioii of the court, and we think no abuse of that discretion-vías' shown: ' Besides, we think, under Dr. 3?archman’s testimony, read in its entirety, that it does not appear that he stated' that appellee then tad tuberculosis of the spine —a condition .which the company’s physician said would' be disclosed by an X-ray — but the prognosis of the case was ,that tuberculosis would develop, an. opinion which' an X-ray picture could neither refute nor confirm.

: Over appellant’s objection the court gave .an instruction numbered;5, which reads us follows.“It the jury find for the plaintiff, they will assess'his damagesat such a sum as will compensate him for the.bodily injury: sustained, if any, the physical pain and mental anguish suffered1 and- endured by him in the. past,, if any, and-, that which he will endure in the future, by reason of the said injury, the effect of the injury on his health according to the degree and probable dúration of the same, if any, his loss of time, if any, the pecuniary loss from his diminished .capacity for ea-rningmoney, through life, df any, and from these, as -:proved fey .the-evidence, assess '-shell damages as will compensate him: for the injuries received. ” , - y '

..Only a:general objection was made to. this instruction, and the-objection now'hrged to it is that.it assumed ai? a fact that appellee would endure future physical pain and mental anguish by reason of the' injuries received by him. We think the objection is one. wlpcfe should have been made specifically at ,the trial. We .do, not think the instruction assumes as .a, fact that appellee, will continue ¡to endure pain and anguish. On. the . contrary, we think, the. ¡question was submitted hypothetically — as. it should have/been — and, if it rwas thought otherwise,, a, specific objection should have, been made. St. L. S. W. R. *336 Co. v. McLaughlin, 129 Ark. 377; Brinkley Car Works & Mfg. Co. v. Cooper, 75 Ark. 325.

-..The verdict and judgment in the case was for $12,000, and it is insisted that this is excessive,- and unsupported 'by. the. testimony. It appears from, the facts already stated that appellee’s condition was that of a man who had lost the use of a foot, and, as one doctor said, it. would have been better, to have amputated the foot. In addition, appellee was. shown to have had a pérma-nent injury tovhis spine,'with the probability that the trouble, would develop into tuberculosis, and that his condition was permanent. In addition it was shown that appellee was a trained and experienced brakéman, and in line soon to be promoted to a conductor. That his earhings-as a brakeman were about $1,500 a year, and he had wholly lost his capacity to earn money in that employment, and could only secure such employment as a cripple could perform. Under these circumstances we cannot say the verdict is hot supported by the testimony, and, as no error appears, the judgment is affirmed.