In attempting to board one of appellant's passenger trains at Bridgeport, Texas, on the night of September 13, 1895, appellee fell or was thrown under the car, and in consequence thereof both of her feet were crushed and had to be amputated. On account of this severe injury and great loss, she recovered a verdict and judgment for $25,000, from which this appeal is prosecuted.
On the question of appellant's liability the evidence both as to negligence and contributory negligence was conflicting, and that issue was fairly submitted to the jury, both in the rulings on the evidence and in the charge, though possibly there was error in permitting a certain line of argument complained of. We proceed, therefore, to consider the exclusion of certain expert testimony affecting the measure of recovery.
Upon her examination in chief, she being the first witness, appellee, after fully describing her injuries, unwrapped her injured limbs and exhibited them in the presence of the court and jury. Just before doing so she testified: "My right leg is still sore. The other one is healed up. They are both tender. I have some little tin things that I put on my legs when I move from one place to another, and my daughter and son with me. It takes two persons to lift me. I can not bear any weight on my right leg." Here the tin things, termed cans by some of the witnesses, were shown to the jury, attended with an explanation of how they were worn.
Just before resting her case she offered Dr. Poindexter as an expert witness, who testified: "I examined her limbs where the amputation was performed this morning. One is partially healed, and the other is not. It is in a very irritated condition, and my notion is, will probably be that way always. I do not think it will ever heal. I do not think it would be a very good idea to amputate any more. I would consider it dangerous now to her life. She can not use artificial limbs on those stumps. You can use only on healed stumps; hers are unhealed. You could not use artificial limbs on either one of them. One looks like it has been healed. The other one never has been healed. At least it shows places there that there might be indications of pus. It is irritated, red and inflamed." Upon further examination, cross and redirect, his testimony tended to prove that, in his opinion, the limbs would never heal, because of "a deposit of calcine matter," and that this condition resulted from the splitting of the bones at the time of the injury; and also that, in his opinion, no harm resulted from the use of the tin cans.
Appellant offered as experts in its behalf Drs. Saunders and Reily, who qualified themselves as such. Dr. Saunders testified: "I haven't examined the plaintiff in this case. Taking the plaintiff, injured as she is, I think I could tell by an examination, with reasonable certainty, whether the stubs of her limbs would ever get well enough for her to wear artificial limbs." He then proceeded to explain how an examination *Page 570 would enable him to determine whether artificial limbs could be worn, and stated positively that such examination would enable him to tell whether the existing trouble was due to a diseased bone. His testimony was at variance with that of Dr. Poindexter as to the advisability and effect of wearing the tin cans.
Dr. Reily had amputated the limbs soon after the accident, more than two years before the trial, and testified: "If I should examine her now, I think I could tell whether she is now able or would at any time hereafter be able, with proper care and treatment, to wear or use artificial limbs. I advised her while treating her that she would be able to wear artificial limbs. I told her that she would be able to wear them in four months. She moved away before the time was out."
Appellant was denied the opportunity on the trial of having these witnesses examine the injured limbs and testify in relation thereto, as will more fully appear from the following bill of exceptions: "Be it remembered, that on the trial of the above entitled cause the defendant requested of plaintiff's counsel permission for Dr. Bacon Saunders and Dr. H. Reily, surgeons of defendant, and in defendant's regular employment, to examine the condition of plaintiff with reference to her injuries, which permission was refused by plaintiff's counsel, on the ground that said Saunders and Reily were in the employment of the defendant, and plaintiff's counsel offered to have plaintiff examined by any number of physicians the court might see proper to appoint on defendant's application who were not in any way connected with plaintiff or defendant; that defendant's counsel thereupon made application to the court, and requested the appointment of said Saunders and Reily to examine the plaintiff; that thereupon plaintiff's counsel made the same objection they had made to defendant's counsel, and renewed their said offer; that defendant's counsel thereupon said they would not insist upon the appointment of Dr. Reily, but would be willing for the court to appoint a commission of three physicians and surgeons to examine plaintiff, provided one of them was the said Dr. Bacon Saunders; that the reason that the defendant insisted on the appointment of said Dr. Saunders was because of his known reputation as a surgeon, and because defendant's counsel did not believe that his equal was accessible to the court; that plaintiff's counsel objected to the appointment of Dr. Saunders on the ground that he was in the employment of defendant and had been brought here by defendant from Fort Worth for the express purpose of testifying in its behalf, and on the ground that he might be a partisan, but stated that any three doctors or any number of doctors whom the court would regard as competent and impartial, and who were not connected by employment or otherwise with the plaintiff or defendant, would be acceptable to plaintiff, and plaintiff had no objection to such commission being appointed by the court to make such examination; that the court asked plaintiff's counsel if Drs. Saunders, Reily, and Stinson would be satisfactory, whereupon they objected to Drs. Saunders and Reily for the reasons stated above; that they did not know Dr. *Page 571 Stinson, but if the court thought that he was competent and impartial, they did not object to him, or any number of doctors of that description; that thereupon defendant's counsel objected to the appointment of any commission unless the said Dr. Saunders was also appointed, because of his said reputation as above stated; that the court then said that he would appoint Dr. Stinson, if he was satisfactory to the parties, and he could act or not as they saw proper; that thereupon the defendant introduced Drs. Saunders and Reily, and asked each of said witnesses if he could tell by an examination of plaintiff's injuries whether or not she, the plaintiff, would ever be able to use artificial limbs, which question both of said witnesses answered in the affirmative; that thereupon defendant's counsel propounded the following interrogatory to each of said witnesses separately: `Doctor, will you please here and now examine the plaintiff and her injuries?' That plaintiff's counsel objected, on the ground that said witnesses were in the employment of the railway company, and were partisan and not impartial, and that they had not been appointed by the court to make such examination, and defendant had no right to have such examination made without consent of plaintiff, and that plaintiff was ready to submit to an examination by doctors considered by the court to be impartial and competent, and who were not in any way connected by employment or otherwise to plaintiff or defendant, which objection was sustained by the court, and the defendant excepted and here tenders this its bill of exceptions, the same being number 16. Defendant could have proved by said witnesses that plaintiff could at that time wear artificial limbs without pain, and get about on them in such manner that her injuries could not be detected in her locomotion. The conversation between the court and counsel relative to the appointment of a commission above referred to was not in the hearing of the jury."
Dr. Stinson being thus permitted to make an examination, did so, and was offered as a witness by appellee. After describing what his examination disclosed, he was asked: "Take that limb in its present condition, and allow it to go on without an operation, could she use an artificial limb?" To which he answered: "It is possible that a limb might be devised where the pressure would not fall on the end of the stump. It is possible to devise an artificial member, where the stump would not be in contact with the limb, and it might be possible for her to wear it. If the stump should come in contact with the artificial member, she could not wear it." In the main, however, his testimony was favorable to the appellee, and tended to show that artificial limbs could not be used, though not so much so as that of Dr. Poindexter. No other experts were introduced.
In this state of the record, was it material error for the court to refuse the request of appellant to have experts of its own selection examine the injured limbs so exhibited to the court and jury, and give their opinions as to whether appellee was capable of using artificial limbs? If error at all, it was clearly material. The amount of the *Page 572 verdict should, and doubtless would, have been materially less if the jury had believed that, instead of being a helpless cripple for life, appellee was capable of locomotion by means of artificial limbs. It is to be inferred from the record that the testimony of Drs. Saunders and Reilly, if they had been permitted to make the necessary examination, would probably have been favorable to appellant. But if not, the bill of exceptions above contains a positive statement to that effect, which we accept.
Every lawyer of experience in the trial of cases knows that experts differ widely in opinion on such matters, quite as much so as experts themselves differ in reputation and skill. It is not, therefore, for the court to determine in advance what experts the jury shall believe. That is the peculiar province of the jury. The fact that Saunders and Reily were in the employment of appellant as surgeons went to the weight and not the admissibility of their testimony, for any relevant testimony they were capable of giving would not have been excluded upon this ground.
As this was the single specific ground of objection urged to their making an examination of the injured limbs, preparatory to giving an opinion, we come to the question, seeing that the ruling was probably prejudicial, whether the court erred in denying appellant's request for such preliminary examination. If appellee had not made profert of her injured limbs to the court and jury, the request to have experts appointed by the court to make an examination over her objection would present the question which has been repeatedly before the courts, and upon which the decisions are in hopeless conflict, so much so that judges of the same court, notably of the Supreme Court of the United States, are divided in opinion upon it. For the two opposing lines of argument, see the majority and minority opinions in Railway v. Botsford, 141 U.S. 250. This court, and presumptively our Supreme Court, stands committed to the views expressed by the majority of the court in the Botsford case. Railway v. Pendery, 14 Texas Civ. App. 60[14 Tex. Civ. App. 60], in which writ of error was refused.
But inasmuch as appellee invited an inspection and examination of her wounded limbs by making profert of them on the trial, we have finally concluded that the case presents a different question from that so often considered, and that its solution should not be influenced by our cherished Anglo-Saxon principle of personal security. In our opinion, it would be a perversion of that principle to apply it in a case like this, where the plaintiff, unfortunate and pitiable though she be, voluntarily lays bare before the court and jury her afflicted members for the inspection and examination of the judge, jury, and advocate. For all the purposes of the trial, she thus waived her right to object, upon the ground of an invasion of her right of personal security, to a reasonable and proper examination, under the direction of the court, of the wounded parts. She thus by her own voluntary act conferred upon the court jurisdiction to compel what otherwise she *Page 573 might have refused to submit to. Having conferred the jurisdiction, she could not take it away at pleasure without trifling with the court. It lasted as long as the trial lasted. In our Bill of Rights it is provided that the accused in a criminal prosecution "shall not be compelled to give evidence against himself," and yet it is held that if he voluntarily takes the witness stand he must submit to cross-examination.
It was not pretended that either of the experts offered was personally offensive to appellee, or that the proposed examination would be attended with danger, delay or inconvenience even. Personal security in any form was not so much as mentioned, eo nomine at least, as a ground of objection. Dr. Reily, it will be remembered, amputated her limbs in the first instance. The only specific objection urged was that the proposed experts were in the employment of appellant, and might be biased. This objection, as before seen, went to the weight and not to the admissibility of the evidence. It is to be inferred from the record that if this objection had been overruled by the court, the examination would readily have been submitted to then and there. We can not, therefore, escape the conclusion that the real objection to the proposed examination was other than personal security, and hence that the numerous cases cited as authority, both in and out of this State, are not in point.
The only case cited or found that is at all parallel is that of Haynes v. Town of Trenton, 27 Southwestern Reporter, 622, decided by the Supreme Court of Missouri. The point decided is thus correctly stated in the eighth syllabus, which seems to have been prepared by the judge: "Per Macfarlane, J. (Black, C.J., and Brace, J., concurring): Where plaintiff exhibits his injured leg to the jury on a trial as to the cause of the injury, it is error to refuse permission to the adverse party to have the leg examined in open court by experts, with a view to introduce their testimony as to the character of the injury and its probable permanency." In the course of the opinion of Judge Macfarlane, in which two of the other three judges of that division of the court seem to have concurred, and from which the remaining judge does not seem to have dissented, this language is used: "Defendant had the undoubted right, in this case, at any time after the injuries had been shown to the jury, to have physicians examine the injured leg, and testify as experts to its character and probable permanency. The question was not as to the right of defendant to have an examination of the injuries made, but as to the right to test the effect and reduce the weight of evidence introduced by plaintiff."
So we hold in the case at bar, — not that the court should have appointed physicians to make an examination in the first instance, for we have no statute prescribing such procedure, but that when appellant's counsel made the following proposition, as shown in the bill of exceptions, "Doctor, will you please here and now examine the plaintiff and her injuries?" the objection made by appellee's counsel should have *Page 574 been overruled and the witnesses permitted then and there, or at such other reasonable time and place as the court might appoint, to make the proposed examination and give the result of it to the jury. It seems to us that this would have been simple justice, and consequently that it ought to have been done, thereby avoiding the appearance of an ex parte trial on this important issue. No harm could have resulted from such a course. Upon this ground, therefore, we feel constrained to order a reversal of the judgment.
The argument of appellee's counsel of which complaint is made was apparently of a very damaging character, in that it was calculated to arouse sympathy for appellee and prejudice against appellant. It purported, however, to be based upon facts in the record, though some of the inferences at least, if not all, were wholly unwarranted by the facts proven, and were clothed in language calculated to substitute in the mind of the jury such inferences for facts. In view of the conclusion already reached, we need not determine whether the judgment should be reversed upon this ground, taken in connection with the large and alleged excessive amount of the verdict.
Reversed and remanded.