In order that the principles of law governing this case may be properly applied, the following restatement of the issues of fact tried is necessary.
Respondent, a minor, acting by Lyon Healy, his guardianad litem, commenced this action against appellant for damages sustained by him when he was a railroad section laborer in its employ. It is alleged in the complaint that while he was standing between the rails of the track, ready to assist in removing therefrom the motor-car used by the section crew, a motor-car driven by his father, who was a signal maintainer employed by appellant, and who was in the performance of his duties to it, ran against respondent, pinned him against the car used by the section crew and dragged him along the track, injuring his left leg and the region of his hips and back, causing him to suffer great pain and permanently crippling and disabling him. It is further alleged that respondent and appellant were engaged *Page 547 in interstate commerce at the time of the accident. The action is brought pursuant to the Federal Employers' Liability Law (U. S.C. A., title 45, chap. 2).
The minority of respondent, appointment of his guardianad litem, authorization to commence the action, the corporate existence of appellant, and that it was a common carrier engaged in the operation of a railway in interstate commerce, were admitted in the answer, as was also the fact that respondent was engaged in work on the section as an interstate employee of appellant, within the meaning of U.S.C.A., title 45, chap. 2. Appellant denied each and every allegation in the complaint not admitted as aforesaid.
For a second, separate and distinct defense appellant alleged contributory negligence of respondent, and that he would not have been injured except for such negligence. For a third, separate and distinct defense it alleged that if respondent was injured as stated in the complaint, his injuries were of such limited nature and extent that if he had promptly reported them to his employer and requested and submitted to medical and surgical services and hospitalization, which his employer would have furnished him without cost, he would not have suffered any serious or permanent injury, but that he and his father, who was his natural guardian, concealed from and did not report to the operating and executive officers and physicians and surgeons of appellant that respondent had suffered personal injury, and that he refrained from consulting a competent physician or surgeon when, if suffering from any of the injuries of which he complained, he and his father well knew he should have done so, and that whatever aggravation or injuries or damages he sustained in excess of a limited incapacity for a period of a few weeks, were directly caused and contributed to by him and his father and that appellant was not liable therefor. The allegations in the answer of matter constituting affirmative defenses are deemed to be denied. (I. C. A., sec.5-812.) *Page 548
The trial resulted in a verdict and judgment for respondent, from which this appeal has been taken.
Appellant assigns as error rulings sustaining objections to questions propounded to respondent on cross-examination the purpose of which was to show he knew, at the time of the accident, appellant had a staff of physicians and surgeons to care for its injured employees and that their services were available to him without cost. The court tried the case on the theory that the second and third separate defenses, stated in the answer, were affirmative defenses and that the burden was on appellant to prove the allegations thereof. Assignments of error now under consideration present for review rulings based on that theory.
As will be seen by an examination of note 75 appended to U.S.C.A., title 45, chap. 2, sec. 53, commencing on page 410, the federal rule applicable to contributory negligence, like I. C. A., sec. 5-816, places the burden of proof thereof on the defendant. Contributory negligence, pleaded in defendant's second separate defense, and failure of respondent to promptly report his injuries and to secure medical and surgical services and hospitalization, pleaded in his third separate defense, which failure is alleged to have aggravated his injuries, are affirmative defenses intended to reduce the amount of his recovery, and the burden of establishing the facts set forth therein was properly placed on appellant.
In Hopkins v. Utah Northern Ry. Co., 2 Idaho 300, 13 P. 343, the court had under consideration the question of order of proof of the affirmative defense of contributory negligence and said:
"We see no error in the ruling of the trial court in excluding the evidence sought to be adduced by the defendant by cross-examination of plaintiff's witnesses as tending to show contributory negligence on the part of plaintiff's servant. It is a general rule that the defendant should not open his case by a cross-examination of plaintiff's witness; but the application of this rule must necessarily *Page 549 rest largely in the sound discretion of the trial court." (See, also, State v. Smailes, 51 Idaho 321, 5 P.2d 540; Kennedyv. Supnick, 82 Okl. 208, 200 P. 151, 28 A.L.R. 1520.)
In the case last above cited this rule is stated:
"It is fundamental that the defendant should not be permitted to make his defense by the cross-examination of plaintiff or plaintiff's witness on matters not touched upon in the examination in chief."
Counsel for appellant correctly invoked the law, applicable to the order of proof, when respondent was on the witness-stand in support of the allegations of his complaint and the following occurred on redirect examination:
"Q. Did you, at any time, after the accident make application to the section boss to see a doctor, for an order to see a doctor?
"A. Yes, sir.
"Q. About when was that, with reference to when the accident occurred?
"A. About a week after I got hurt.
"Q. And what happened?
"A. He told me if he would give me the order, —
"Mr. Thompson: I object to this. This is no part of the plaintiff's case. It is no part of the direct case of the plaintiff. I think that the plaintiff had finished with his direct examination. It is incompetent.
"General Peterson: The question has been raised by cross-examination that the boy was culpable in not seeing a railroad doctor.
"The Court: The court rules that at this time it is not part of the issues of the case and so the objection is sustained at this time."
It is inconsistent with the position taken by appellant in urging that objection, to insist here that proof of diligence in procuring treatment for his injuries was a part of respondent's case in chief, or that lack of it might be shown on cross-examination of respondent when such cross-examination related to nothing referred to in his direct *Page 550 testimony. Parties to an action are bound by the theory on which they try it. (Idaho Gold Dredging Corp. v. Boise PayetteL. Co., 52 Idaho 766, 22 P.2d 147.) Furthermore, appellant presented its evidence, fully, at the proper time, when offering proof to sustain the allegations of its answer, and it was in no way prejudiced by the rulings of the court on its cross-examination of respondent.
Rulings admitting evidence, on rebuttal, of treatments received by respondent from a chiropractor, and of a statement made to him by the section foreman to the effect that he would like to send respondent to a doctor, but if he did so he would be discharged, are assigned as error. This evidence was admissible and was properly confined to rebuttal of appellant's theory and evidence that respondent had neglected to avail himself of medical and surgical assistance, made available to him by it, and that his failure so to do was largely responsible for his disabled condition.
The admission of testimony by respondent, in rebuttal, concerning an opinion with respect to his condition, expressed by Dr. Young at the Pocatello General Hospital, is assigned as error.
Dr. Young, a physician and surgeon on appellant's medical staff, called by it as a witness, testified to having made three examinations of respondent, one of which was at the hospital; that the usual treatment for respondent's condition was "rest in bed, support to the hips and heat"; that if respondent had immediately reported to him and had applied treatment such as would ordinarily be applied or prescribed, he thought it would have resulted in a cure in six or eight weeks; that he believed respondent could yet be cured, but his cure had been made more difficult and uncertain by delay in applying proper treatment. It does not clearly appear whether the doctor was acting as respondent's physician, or as appellant's employee and agent, at the time of making the examination referred to in the following testimony:
"Q. What did Dr. Young say, if anything on that occasion, at the time or immediately after the occasion at the hospital, as to whether you would get over it? *Page 551
"Mr. Thompson: That is objected to as incompetent, irrelevant and immaterial, also hearsay and no proper foundation is laid.
"The Court: The question of diligence on the part of the plaintiff and of his parents, if it is imputable, — I think he may answer.
"A. He said to me as soon as the weather would clear up, that my pains would leave me."
Respondent's father testified:
"Q. What did Dr. Young say, if anything in your presence on the date mentioned, after he, at the time of the examination, about the injuries to your son?
"Mr. Thompson: We object to that as incompetent, irrelevant and immaterial, and calling for hearsay testimony and not binding upon the defendant and also no foundation has been laid.
"The Court: He may answer.
"A. He said, 'The boy is young and will grow out of this, and as soon as the weather clears up, he will get out of it and be just as good as ever before.' "
The rulings admitting the testimony were not erroneous. This testimony was properly admitted as rebuttal to evidence introduced by appellant that respondent and his parents had been negligent in failing to procure for him proper medical and surgical treatment. Upon this theory the testimony was admissible regardless of whether Dr. Young was acting as respondent's physician, or as a member of appellant's medical staff, when he made the examination, and when whatever advice he gave was given with respect to respondent's condition and his prospects of recovery.
The record does not disclose any prejudicial error and the judgment should be affirmed.
Holden, J., concurs in this dissenting opinion. *Page 552