xt73bk16mf8w_334 https://exploreuk.uky.edu/dips/xt73bk16mf8w/data/mets.xml https://exploreuk.uky.edu/dips/xt73bk16mf8w/data/51w14.dao.xml unknown 35 Cubic Feet 77 boxes archival material 51w14 English University of Kentucky Copyright has not been assigned to the University of Kentucky. Contact the Special Collections Research Center for information regarding rights and use of this collection. Louisville and Nashville Railroad Company and Lexington and Eastern Railway Company records Railroads -- Appalachian Region -- History. Railroads -- Kentucky -- History. [258i] Crawford v. L&E, Lee Circuit Court text [258i] Crawford v. L&E, Lee Circuit Court 2016 https://exploreuk.uky.edu/dips/xt73bk16mf8w/data/51w14/Box_33/Folder_6/0651.pdf section false xt73bk16mf8w_334 xt73bk16mf8w "" ,. . 7, .-.\, ’.?/- (.1,-7e 1- r V r] (“4‘5” 5‘" C t. :3 F17 n;- "1:” .“7.... “MM .«_
Ark.) j/,e, “woman v. HICKSON & FINDLEY. i’i' ' a 401
l ,’ _J' l ll
' ’r g or jobs of work, and that they have been ’
JQV‘OMBLE v. HTCK. ON & FINDLEY. ‘danmged thereby-
(Supreme Court of Arkansas. July 12, 1909.) “033$ pray Judgment for $100 and for
l n v ' - ) Y V l ,, , 1_,
likab‘ilsni‘ﬁgg (glitﬁ’HC—h’g:glitoggﬁlli‘);cr 't‘hc following is a copy of the contract on
“here a house was to be a duplicate of a thh the ”("“‘)” IS based:
certain other house in tlle town, with certain “This agreement entered into this day by
SDCCilik‘g clhangeshthe EEOVitblioh fOI' tllﬁtﬂitigh- and between John C. Ilickson and Joe Find-
1 ‘ ' ‘ ‘ ?‘ ll 'ilSlH" ‘ ' V ... . . V t .
yyyyyyyyyy as: y to less eueeees and o. o- w el en
do so through no fault of the contractor was ini- l or ‘Vouible, Ark, IS and shall be as tollows:
mum-i511, “The said Hickson & Findley agree to
lEd. Note—For other cases, see Contracts, illlllld a residence out of the material for—
Cent. Dig. § 749; Dec. Dig- § 1003“] inishcd by \Volnble which will be a duplicate
2.DA.\1‘AGES (§ 124=l=)_cONTRACT_BREACH, lot the Monroe Rowton house ill \\‘onlble,
\\‘llcrc contractors, who had agreed 10,1)33— lwith the exception that they will build the
form the carpenter work on a house tor $12.10, lhall 7 feet wide. will make the cornice
were not permitted to do the work by the own— in , . ,
or, they were entitled to recover the dhfel-emel square style and budd the trout alld back
between such amount and what they were able porches with ﬁat roof to be covered with
to cam at othrl‘ employlllellt (hll‘ihg the time [tin, and it is understood and agreed that
ylyyiyyyyytyylymyyi‘yyyyyyyzyyly d ; wewe 1'? to b iETTd
Lllld. Note—For other cases, see Damages, ,shlngles, tin and fill otllernecessuly mateilal
Cent. Dig. §§ 3110;335; Dec. Dig. § 124s] for the constructlon of said house.
“Hickson & Findley agree to put only
Appeal from Circuit C011”) Montgomery firstsclass workmanship in this building and
County; Jas. S- Steel, Judge. agree to sandpaper and smooth all ﬁnish-
ACtiOD by Hh‘hSOh & Findley against 0- lines such as baseboards. casings, etc.
0- \Vomble. Judgment for plaintiffs, and de-l "Womble agrees to pay for the carpenter
femlant appeals. Alhrwed- ‘work on said house to Hickson & Findley the
J. l. Alley, for appellant. Gibson Witt, {certain shin 0t one hundred and ﬁfty—live dol-
for appellecs. Ilars thloulltl) in a manner and‘at such times,
as Will be agreed on later, whlch subsequent
lagreelnents will be attached and become a
BATTLE J- The following is the com— Ipart of this instrument. A drawing alld
plaint tiled in this action (omitting caption): lspeciﬁcatious of said house is to be attached
“Comes the plaintiffs, John C. Ilickson and and become a part of this contract.
Joe ll‘illdlcy, and state that on or about the “Signatures: John Q, Hickson,
15th day of January, 1908, they, as carpen— “Joe Findley,
ters, entered into a contract with the defend- Carpenters.
ant, O. (J. Womble, to build a residence for “0. 0‘ Womble.”
the defendant on his lot in the town of The contract was written by Womble and
Womble, Ark, and that according to said signed by all the parties. It was not dated.
contract the said defendant was to pay them The place where the residence was to be con-
the 511111 0f $155 1'01" the carpenter work, in a strueted was not speciﬁed, nor the time when
manner and at such times as “'35 to be it was to be built; but that was understood
agreed llpoli at a later date. The said O. and agreed upon. A drawing and speciﬁca.
O. Womble was to furnish all material for tions of the house was to be attached and
the CODS‘EFUCUOD 0f said residence. The become a part of the contract, but was not
said contract, together with the specilications done through no fault of the plaintiifs. This
and drawings, as provided for, are ﬁled here— was not a condition of the contract, and
With and hlill‘l‘ied ‘EXhibitS A and B3 was not necessary. The house to be built
“That the contract was entered into in was to be a duplicate of the “Monroe Rowton
good faith by all parties and signed in the house” in Womble, with certain speciﬁed
DI'OSCDCG by both plaintiffs and det‘endant. exceptions, which itself furnished the plans
“They state further: That the defendant, and speciﬁcations required. Plaintiffs offer— ,
O. O. Womble, has refused to furnish them ed to perform their part of the contract,
(the plaintiffs) the said carpenter work. but were not allowed by the defendant to
That according to agreement they were to be— do so. They made diligent efforts to ob-
gin the work on or about January 18, 1908. tain work in the time required to build the
That said defendant has placed other car- house of the defendant, but were unable
, penters to work on said residence. to earn in that time exceeding $48. The jury
“That plaintilt’s have been ready and will- iinpaneled to try the issues in the case re-
ing to begin work on said house at all times turned a verdict in favor 01' the plaintiffs
since the contract was entered into, and for $107. It was more favorable to defend
that they have been hindered by virtue of ant than he was entitled to.
said contract from taking other contractsl Judgment afﬁrmed.
‘For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, a Reporter Indexes
121 sW.—26 . '
‘ l .

0 121 SOUTHWESTERN ilET’OIi’i‘ER. K '.
40.. Y
: ., . /" Ins to plaintiff‘s condition from what he had , .
" ' - received from plaintiff. which was purely y‘-
4 r . . ' .
CHESAPEAKE & O: {“3 CO‘ 8‘ :11. V' say, capable of being manulzlcturcd, and cre-
\\1Llu\. fore umdmlss'Ible, the admission of srcll cvi-
. r. I_ . .— deuce could not be held without prejudice to
(Coult of Appeals of 1\Llitil(.l\). June 18. 1903., defendant.
.1. Misuse AND SERVANT (§ 270*)#INJURIES [F.d. Note—For oil‘cr cases, see Appeal and
’i‘() NurvnNT—ll.ill.lr0.\iis—BIIOI{EN RAILs— Error Dec D" §]U'O *]
EVIDENCE—KUIFS I I "III II I
. \VllIcre a railroad elliployé, who was injured Appeal from Circuit Court, \Voodford
by derailment caused by :1 broken I‘uil. cluilucd County _
that the rail was probably cracked by being .... . . n
forced into a curved position, when cold. and the 10 b0 oihcmiiy I‘GDOI‘tOd-
curgvc on which the Hill was laid was from 21,43 Action by Edward \VilCV against the Chesa-
to (leﬁ'rc s defc dn "s 1‘ . l“( Il'Il'T :ll rill.~ ' .' . 7
for curIvosCoIf 4 llama: .111I2116¢\.0L1.1I:3 Ible‘" primal; DOdkC & 01110 Railway Company and :luotb—
Clil'VCCl before laid, was admissible. or. Judgmcllt for plilultli'f. and defendants
[Ed Note—For other cases, see Master and iIDDOM- Reversed and remanded.
Servant Dec. Di". ‘ 270.“ .
’ ° 5 1 Shelby & Shelby and Wallace & Harris.
2. EVIDENCE (§§ 548, 552*) — OPINION EVI- for appellants. Scott 8; Hamilton. D. T. Ed—
DLF‘ICE‘E’QDFLY LONDIHON- . . wards, {llid W. 0. Davis, for appellce.
. JIlle opinions of expert physmluns as to
plaintiff‘s condition. based on objective sylnp- "
toms and on a hypothesis submitted in questions O‘REAR JI Appellants Chesapeake &
pl'opoullded to them, are admissible. . . ’ . I .. . .
”III \. t 1‘ ti E '1 Ohio Railway Company and LOillSVllle L\’,
A II—i - - . i 4 .- . . .
DecIIIDin§II§ 54? 53915.31 CI‘SGS’ 5‘0 \ltcnce, husllvllle Railroad Company use. under an
I” ’ ugrecmcut between them, the truck of the
vl-lgivIDENICIE (§ 54’iil*):01’INIO¥ EVIDENCE— Louisville & Nashville Railroad Company
ODlLY mNbITION—Lvurrous. . .- - v. , .

Physicians may describe the symptoms of from LOMII'I’IIIIIII’ lay. t0 LOIIIISIIIIC' Ix). AS
a complaint in issue as given by accepted medi— one of the freight trams of the Chesapeake &
cal authorities. Ohio Railway Company was going from Lex-

lIEd. Note—For other Cnscs. gee Evidence. lngtou to Louisville, and while near Spring

Cent. Dig. 52341; Dec. Dig. § o06.*] Station the caboose and five or six of the

AI- EVIDENCE (§ 52S*)—EXPERT Ol’INJONS—PER- cars on the rear end of the train were de-

. .,A’ MANENCY 0F INJURYI ' railed. Appellee was riding in tile caboose.

.i A physician may give his 0 inion as to which, when derailed, tui'ucd upon its side
. ,1 . .I., .. . p

l lIeiiiIIiIlIiIleIrIIIIIIIIIIIIS COIIillthD lS Dewmnellt 01‘ and injured him. On the day before his

VTTI'd \EI I‘ I right of action was barred by the statutes

‘1 . .— i ‘ I r . . . . -. . . .-

(‘cnt Dino? .,.“ng (i961? ﬁfe: 5§f§ﬂEVldencel of limitations, he Instlillted this .‘lCilOIi. He

I ” ‘ ' ’ I. t" ”I alleged. ill substance. that appellants were

001311333513 (§E 121*i—1lns (inﬁrm—BODILY negligent in the construction of their truck

Statements of {IlIlIigiIlilIliIi'ZdoiIiorsoIiiNas to min at the pond mulled and in falling to keep if

“.“d suffering or his bodily condition are admis- Ill reasonably safe Condition :lud l'cpzlll', ulld
‘ SiblO, 1E rcs gestze. that by reason of their negligence he re-
II[Ed_ Note—11:01- other cases see Evidence, ccivcd his injuries. A trial] of the misc was
(out. Dig. §§ oil—.352; Dec. Dig. § 121*] had nearly two years after the injuries were
6. EVIDENCE (§$ 197 1°8*)~—DECLAR4Tons- received, and the jury l'ciul'ued :l verdict ill
EXPRESSIONS OF PAIN. his favor for $3.000.

Such statements are admissible if they are The l'cslllliouy shows that the dcl'ulluleut
tlchusual. natural and spontaneous expressions was caused 1W a broken 1““ 01. I'utllcl‘ by
Indicating present pain and Suffering or if made I . _- I .I . . -.. I . I - .
to a physician wllile seeking medical assist- the b10:1l\lllg out 01 .1 Ditto ot the bull 0t .1
:lnce. ralll. Tllc wii'ucsscs vary as to tile lcngtll

[Ed. Note—For other caSpSI see Evidcucc. of the plccc of the mil tli‘lt broke out, from
Cent. Dig. §§ 3774387; Dec. Dig. §§ 127, 1285*] 18 illclics to 3 feet. The mil consisted of :1
'7 FVIDI‘NCI‘ (§ 537*) EXPERTS OPI‘ZION base, which rests upou the tics, ucxt tlic
, . A u t -- . i . — 1.I — ,
/I HEARSAY. web. and 011 top the bill] upon which the
/ \Vllcl‘e an injured person goes too physi. wheels of tlic curs run. The mils all-c held
.I IIlIIIII'lIIOI {01‘ tl‘i‘ﬂéilliI‘llIIto bllt t0 be ““8“,ng ERIE togotlicr at tile joluis by what are culled
i tle (.octor mn' cs1v as all cxmr' lll 01:1 ' n-e _ ,.. . . . . . . . .-
of the party She pllesiCl‘in should not be WP iisll plates.” “lllLll .llc plactd on cull Side
_ y . ~ ‘ ., r . .. ' . . ' ' -' v .
1 miticd to express :ill expert opinion on sub- 01 the LUIS ‘11“1 held “1 D'lsm‘)“ b3 bolls
jvctive conditions and fortify it by stating acts passing through both the plates and the web
, of tlIle IglIIIllIlI'IiIi pol-sou wluch could have DOW of tile ralil; ollc-ll:llf of cqu plate resting
i“ ' l I‘ ' . . . - I
. 1’" t y I . I y l '1 against the web of each i'ull. There was
I V . _ ‘ u L l 1’ . . ‘
1)[-EIII1I)ilIv\0§IIIjBTII*IIJII 0t)“ C‘lSCS, see Dulcncc, icslilllouy that there was all old Cl'ilck ill the
" I t" I ml] at or 116211' the break; but the witnesses
8. APPEAL ANTI) ERROR (§ 10éi0”‘)-I’REJUDICE* differ as to the exact location of it. 1‘11er
EviileIIiNriE—IIIIJIEIEEI‘IIIEtglIil?(.iIl0I\lIlijllll0“ hope of illl agree, llowcver. tllilt it was near tile and
. '12.,1. ( ' '... 3.. . - . .‘.
the physicians testifying for plaintiif disnssocinb [or 1110 I‘ll] and extended SIX 01 mm? males
ed his opinion based alone on objective evidences beyond the end of the ﬁsh plate. Some of
___—”M
'For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes

KY-l CHESAPEAKE & 0. RY. CO. v. WILEY. 403
‘ the witnesses stated that it started from the in a suit between the employer and employé
‘E‘W-£113 bolt hole [Elder the ﬁsh platte. Ether]? by_ eitlier party, wfhen the injuretfll ptarltybis
say tiat it was a ove t ie Iisli pa e; u a suing 0 recover 'or injuries in ic C( e-
agrce that it was in the web. They seem to cause of the violation or nonobscrvance 013
agree that the crack was an old one as far the rule. and was himself in a service and
as it extended in the web, but that the break performing work in the sphere of the opera—
through the ball was fresh. One of appel- tion of the rule, that we deem it no longer
lee’s witnesses gave it as his opinion, judging an unsettled question. See cases of L. & N.
from the appearance of the break, that it V. Hilter, 60 S. \V. 2, 22 Ky. Law Rep. 1141;
had existed for more than a month; and L. & N. v. Scanlou, (30 S. \V. 643}, 22 Ky.
three or four of them, who had had consid— Law R011 1400; L. & N. R. It. (fo. v. Gil-
erable experience in railroading. stated that liilm'S Adin‘x, 2+ 'Ky. Lth R017- 153‘3, 71 S.
it would have been an easy matter for a W. 863; I. C. It. It. CO. V. Stith‘s Adm’l‘,
person who was exercising ordinary care to ‘20 Ky. 237, 35 S- W- 1173, 27 K3;- LHW “01’.
have discovered this crack by sight or by 590i 1 L- R- A- (N- S.) 1014; Cincinnati,
tapping the rail with a hammer or seine N~ 0‘ 85 T- P- RY- 00- Vi Curd, 89 S- W. 140.
other metal substance. About the same num- 33 KY- Law Rep. 177; Alexander V- L- & N.
ber of witnesses, also experienced in rail- 1:. R. (30-, 83 KY- 598.
reading, contrtwerted this. Appellee, for the ‘ ADDOHIUNS contend that appellee W115 “Qt
purpose of showing the negligent coustruc- lllJlll‘th to any consulerable extent and
tion of the track, introduced testimony to that he “T13 “HOWGG t0 illtI'OGUCO incompe»
the effect that the rail which broke was 191113 tCStthhY to show the extent Of his
originally a straight one, but had been forced injuriesl This is the I'Cﬂl qlilcstion present-
iiito its osition on a curve of more than ed 0“ his appeal. The ‘3ij 91109 tends to
tour degEees in violation of the company‘s show: That, when the caboose was derailed
rules, and introduced a rule promulgated and turned upon its s1de,appellee was thrown
by appellant, which is No. 86. and is as fol_ trom his pos1tio1i therein on the right—hand
lows: “Curving Rails—All rails for curves Slde 0f the car to the other Slde “9111' the
of four degrees and over must be properly Eléd 3: ttilniogigitiilsdfggahizt tﬁgu‘xﬂy 31::
' et‘or h ar hi in th U" 'k.” W“ > 1' a 'W S? ' ‘
(lllllleuﬁﬂi? tha: hrfiie “2513111 :1 Cl]:\.e_dCAp_ as soon as he recovered he found himself
pellee‘s witnesses ﬁxed it at from 5 to S de- in a .lot of tlebris and thought or the tact
grees, appellants’ witnesses at from 2% to 3 that it was his duty to ﬂag another freight
degrees. Appellee’s theory is that the rail train that was tollowing; that he managed
was probably cracked by being forced, when to get Wt 0f the caboose and go back on the
cold, into its curved position, or that it was track for about 1'30 yards, at which ponit
cracked by the weight of the heavy engines he became dizzy and Sick, sank upon the
. . . 7 . track, and the conductor of his train and
and trains after 1)!)ng put into the strained _ . .
. some other person carried him back to the
position, and that appellants were negligent . .1
. .. , , . . caboose and made a bed for him with the
”1 falling to discover thf crack and repair 1t cushions. He was soon afterwards carried
before the accident. . 1110 1381105 on these to his home in Lexington, where he remained
questions were submitted under clear, ex- in bed for 15 or 18 days under the treatment
phat instructions to the 311,13" of a physician. Dr. Scott, and after he was
Appellants “onto?“ that It was error for able to get out: of the bed he remained un-
the court to 'allow Its 1.910 referred to to be der the treatment of the same doctor for
’ read to the Jury, and “he the C1130 0f 1" & several months. For a while the doctor call-
N' R_ CO' V' Gausli, 11S 5' W‘ 27W the 01m“ ed at his home to see him. After that ap-
ion in which was delivered April 213, 1900, pellee went to his otlice. The doctor ““tu
as sustaining them. The principle establish- advised him to go to the Chesapeake & Ohio
ed in that case is not applicable to the case Railway Company‘s hospital at Clifton
”t bar. Appellee in that case was ‘1 mere Forge, Va, which he did, and remained there
pedestrian using the streets 0f the city. under treatment for a short time, returned
She was “0t connected With 01' using the home, and again platted himself under treat-
railway property in “ll-V sense. I“ the “‘50 ment of Dr. Scott. At about this time he
”t hi” appellce was 5‘11 employc OE and “Shh-T claimed his spinal column became curved
1110 tracks 0f appellants 1“ the (1130113130 0f to one side. and the doctor cauterized him for
’ his duties, ilhd hild h right to show that the purpose of relieving him. Appellce took
the road was improperly and negligently all the exercise possible, under the directions
constructed. The rule which was introduced of his physician, Ile hunted and ﬁshed
tended [‘0 Show 1111 admission 0f appellants some; but he had not performed any manual
that, h] 01'd01' to make the Wild reasonably labor since receiving his injuries. Appel.
safe 011 11 “11‘th 0f 11101‘9 than f0111' (10;;1'008, lants claim that appellee‘s injuries are not
it W113 1100053111? t0 curve the rail before as severe as he insists they are... In testify-
putting it on the track. It has been so often ing to the effect and extent of his injuries,
decided by this court that the rules govern- appellee said, in substance: That he had
ing the conduct of a business may be read suffered pain all the time since he was iii—

.104 121 SOUTIIWESTERN REPORTER. (Ky.
jll‘i'Cd in the region of the small of the back I found him with what doctors call a partial .
and from there down to the end of the spinal ankylosis of the lower part of the baclwe,
column. That there were tingling sensations two bones in the spinal column above the hip,
passing from that point down his limbs. and a general soreness and tenderness all
That he lost use of one of his legs; it be- over the lower part of the backbone, clear on
coming paralyzed for about 15 days in the down to the end of it. That caused a great
month of April or May after he received deal of pain on pressure over those bones, and
his injuries in November. That he had in the muscles about and around for a consid-
severe pains in the back of his head once crable distance. He had evidence of what
or twice each month. That he had no such we call 1'Icurasthenia, which are various
atllictions before he was injured. That his symptoms, resulting from some disorder of
back had been stiff. That he could not bend the nervous system, which I will try to make
forward or backward. That the only way plain to you, such as headache, constant
that he could reach anything on the ground headache, not able to sleep at night, frequent-
was by bending his knees and reaching down ly called insomnia— Q. Mr. Wallace, Did
from his left side. That he could scarcely you get that statement from \Viley, about the
walk up or down stairs or up or down a headache? A. Yes. Mr. Shelby: We object
steep incline. That he could walk on fair- to that, if the court please. We desire to
1y level ground, but that it was much dis- save an exception to that statement. A. Shall
comfort to him. That he had not been able I state what the patient complained of? The
to perform manual labor at any time since Court: Yes, go ahead. Mr. Shelby: The de-
he received the injuries. That he had not fcndants object and except to the statements
been able to sleep well at night. That he of the witness as to the declarations made by
often had no appetite. That when he ﬁshed the plaintiitl’ to him at the time of the ex-
and hunted, or moved about, it was with amination 0f the plaintiff by the witness. A.
great pain. Three physicians, appointed by Well, he had constant headaches, wakeful-
the trial court to examine the plaintiff, tcs— ness, not able to sleep well, star-tings in his
tificd, in substance, that they had made a sleep like a cliild. He was troubled with
thorough examination of him and could not wakefulness, I said, startings in his sleep, not
ﬁnd any cause or defects which could pI'o- able to sleep well, starting as if he was
duce the ailments he complained of. Aimei— frightened, like a child, nervous troubles at
lee introduced three physicians Who testiﬁed night, illld a constant feeling of fatigue in his
that they had made a thorough examination, leg, the general symptoms 01' what we call
and that they found causes which produced traumatic ncurasthenia, which is due to a
the trouble he complained of, and it is 0f the wound or lesion of some kind. Then I found
incompetency 0f their testimony that appel- that he was also troubled with what doctors
lants complain. Neither of them treated him call neuritis. That is an inﬂamed condition
for his injuries. They examined him for of the nerves, an inﬂammation of the nerves
the purpose only of ascertaining if he had that leave the lower part of the backbone,
been injured, the extent and probable cause which interfered with the movements of his
thereof, so as to qualify themselves to give right limb at that time, and then he had feel-
testimony in his behalf concerning his in- ings of numbness and twitchings of his mus-
juries. The effect of their testimony was: clcs in both legs. (Defendants except)”
That they found upon examination that On cross-examination this witness said:
two bones of the spinal column in the 111111- “Q. Did he come to you for the purpose of
bar region united so that they prevented havingr an examination made, or to employ
him from bending either forward or back- you as a physician to treat him? A. No, he
wards; that the nerves and muscles in that came to me for this advice, told me that
region were injured and sore, and slight there was some prospect of a suit, of the de-
pressure on them gave him great pain; that termination of a suit, and he wanted my
they could detect this by the expression of opinion as to his disability, how badly he
pain shown in his face when they pressed was hurt, and whether it was permanent or
upon one of the nerves; that there was a not. Q. Did he come to you for treatment?
bare possibility that he could have deceived A. Not at all. Q. You didn’t see him any
them; that lie (lid not know where the nerves more after that time until your examination
were, and, of course, could not tell when they of him this week? A. No, not in a profes-
pressed upon one, except from the pain; sional way. I met him on the street once or
that they thoroughly tested him upon this twice. Q. How long did this examination
' point. last that you spoke of, in January“? ~A. Oh,
The testimony of Dr. Wallace, a physician some little bit. I could not say that. I went
and witness called by the appellee, contains over him very carefully. I will say that. I
this matter: “Q. Now, Dr. \Vallace, tell the don’t know how long it was, I couldn’t re-
jury, with as little technical verbiage as you member that; but I was very careful about
can, in English, that the jury and I can un- it. Q. Was he stripped? A. Yes, sir. Q.
(lei-stand you, what condition you found Mr. Did you discover any evidences of fracture?
Wiley in when you examined him, when you A. None. Q. Discover any visible bruises, or
made the examination lastJanuary? A. Well, lacerations, or anything of that kind? A.

Ky.) CHESAPEAKE So 0. RY. CO. v. WILEY. 405
None; no, not on the skin. Q. Now, you as seen by the doctor. I wasn’t applying it
snoke of some evidence of ankylosis, or stif— to the nerve. M'r. Shelby, in a general way.
1mg in some 01’ the lower vertebrae? A. Q. Now, is it not a fact that all the syrup-
Yes. Q. The two lower? A. The lumbar ver- toms which go to enable a doctor, as a rule,
tcbrae, the two lower vertebr:e, where it joins to diagnose a case as one of neurasthenia,
the sacrum, that large, triangular belie be- are they, not subjective symptoms as a rule,
tween the hips. A. How did that condition his subjective symptoms? A. Yes, sir. Q.
. manifest itself in the examination? A. In And the doctor is dependent upon the state-
the movements of his body, and with my ments of the patient as to his feelings and
thumbs on what is known as the soft spinal Symptoms? A. No, sir; not altogether. Q.
vertebrae, the lateral processes, giving pres— I didn’t say altogether. A. I generally take
sure there. I could feel and see that there a general statement from the patient. Q. I
wasn’t the usual motion, bending of the back understood you to say, in enumerating the
and contortions in various uses. Q. It didn’t symptoms Which led to diagnose his Con-
seem to move as freely as the other? A. No. (lition as one of neurasthenia, that the head-
Q. You didn‘t see anything in that condition, ache symptom W115 0110? A. Yes. Q. 111‘
of those two lumbar vertebrze, to indicate to 3011111151 W115 0119? A- Yes- Q Starting in his
you that was a permanent condition at that 51001)? A. YCS- Q- LOSS 0f appetite? A- 17953. ,.
time, did you? A. When? Last January? Q. Sensation of fatigue? A. Yes. Q. All of
Q, Yes. A. No, I didn‘t at that time. Q that you had to get from his statement, did
Now, as to—— You say you discovered cvi« 3'0" not? A- YGS- Q- 'l‘hat opinion 0f 3’0111‘5
dcnces of soreness to the touch? A. Yes. Q. was based upon the statement of those symp-
That was manifest, I suppose, by ﬂinching? tOHIS 115 having existed anterior to this 93‘"
A. Yes, sir. Q. That was the only way in ﬂlhhhltiOh? A- Yes.”
which itcould be manifested to you? A. Yes. Dr- Neely, another physician called as a
Q, Of course, you couldn’t tell it; by the touch witness for the plaintiff, testiﬁed in chief. in
yourself? I mean. your own sense of touch Part, 118 fOHOWSI ”Q- NOW, DOCWI'. Will YOU
would not have disclosed the soreness to you, please tell the jury, With as little t€<'111110=l1
but it was his ﬂinching under your touch? \‘Ol‘biage as you can express yourself with.
A. In a particular region, under pressure of the CODditiOh in WhiCh YOU found M11 Wih‘l‘
my thumb— Q_ When you pressed, he when you made the ﬁrst examination of him
, would ﬂinch? A. In certain places. Q. Now, several months ago? A. Well, he came to
‘ will you! You stated you saw what was to my ofﬁce several months ago, and I examin-
your mind evidences ofaneurasthenic condi- ed him. I found that he was suffering
tion? A. Yes. sir. Q, It is a fad that neu» with pain in the back, and, of course. he told
rasthenia means simply an impairment of the me what produced it- Q- N0 matter what
nerve forces? A. Yes, sir; what is known as DI'OdUCEG it JUSt give his CODdhiOh- A-
nerve fatigue, or tired nerve. Q. Just nerve W811, he W35 Shfft‘l'illg With considerable
tiredness? A. Yes, sir; nerve tire and nerve D3111; that is, h0t complaining 50 hthh 0f
irritability. Q. And traumatic neurasthenia an acute suffering except 11D0h DI'GSSUI'G- 1
is that condition of nerve fatigue that is the fOllhd 11D0h pressure ilhd examination a great
result of a wound or an injury? A. Yes, a deal of pain. from the lower portion of his
blow or an injury or a twisting in various spine (310511‘ down t0 the end 0f the spinal
ways, of the nerve. Q. Now, this neuras- _Cord, what we term—next t0 the sacral re-
thenic condition. or nerve fatigue, may come gion, the region of the sacrum. involving all
from other causes than traumatic causes? the sacrum and the coccyx bone; in other
A. Yes. Q. And the symptoms are the same, words, to the small of the back. Q. Down
unless you have the history of some injury? to the end of the backbone? A. Yes, sir.
A. Practically the same. Q. Practically the Q. What general condition of the back and
same. In other words, nerve fatigue has the spine did that produce. Doctor? A. Well, it
same general symptoms and the same general seemed to have produced a very rigid condi-
manifcstat‘ious, whether it results from an in— tion of the bony structure. In having him
jury or whether it results from other causes? bend over, I found that he could not bend
A. I have always thought, in cases that I like an ordinary man. Q. Now, when you
have seen, that in traumatic neurasthenia say ‘rigid condition,’ Doctor, do you mean
there is more of general irritability than in a stiffening of the parts? A. Yes, sir; and
other cases, more general irritability, the that resulting. in my opinion, in congestion
. man is more irritable, and there were evi— 0f the spinal cord, brings about and produces
dences of a more general disturbed condition the various symptoms that he complains of,
thanIsaw in purely functionalneurasthenia; with a partial paralysis, and a tingling,
that is, using that term, not due to injury. pricking sensation of: the muscles. Q. Doc-
Q. That condition of nerve irritability is call- tor, you stated that he was unable to bend
ed neuritis? A. No, sir; neuritis is an en- forward as the ordinary man. How could
, tirely different thing from neurasthenia. Q. you tell that he was unable to bend forward,
I was talking about the irritable condition of independent of his own assertion to that,
. the nerves. A. I was speaking of the general fact? A. Well, I don’t know that I could
irritability of the patient in a general sense, tell, except seeing him make the effort. 1

406 121 SOUTHXVESTERN REPORTER. (Ky.
don’t know that he knew my object in asking statement to you of his suffering, did you un—
lrim to do it. I didn’t use the X-ray on him. dcrtuke to touch the nerve in its course f?”
I wanted to do it; but my main object was the backbone down the limb to usccr £1311
to ascertain if there would be any way of whetbcr or not it was tcudor? A. No, I
getting at the amount of trouble in the spinal don't remember whether I did or not, but
cord, and the doctor who had the X-rny that was his own description of it. I suffer
machine said that it would be no good to usc with scizltic trouble myself, and so I was
it, that he couldn’t tell anything about it. satisﬁed that he knew what he was talking
Q. Could you, Doctor, and did you, ascertain about. (Defendants object. Overruled. EX-
from your examination, by your observu- CCDt)"
tion of the parts and your touch of the parts It is HOt COIltOIldCd that Dr. Nccly examin-
you examined, that this stiffness was there ed the plaintiff f01' the lJUI'DUSG 0f giving 111111
independent of his assertion to that fact? medical treatment, or prolfosslouul advice.
A. Well, I thought so, in my opinion, I The only purpose of his examination, so for
thought I could ﬁnd enough to satisfy me €15 is disclosed, was t0 qualify the dOCtOl‘
that there was practically no 111011011, and to speak in plaintiff‘s behalf as :1 witness. '
there is but slight motion in that except right D1'- Prutbcr is the third 0f the I’lll'SiCiﬂHS
where what we term the lumbar region, the ' called for the plaintiff. Ills testimony, in
sacral region, right at that joint, from that 13““: “'35 as follows: “Q- Where do you
down to the coccyx, there seemed to be ub— liVC? A- I “"9 in Lexington. Q- What is
solutely none, scarcely. Q_ Doctor, the con—. your profession? A. I am :1 physician. Q.
dilion you found that was abnormal, would HOW long have you practiced medicine? A-
tlmt have produced the complaint that tho Twcuiy-hvo years. Q~ General 01' Special
patient made to you? Mr. Shelby: We ob— practice? A‘ Genoral pructlce. Q- Do YO”
jcct. Leading. Q. State, Doctor, what re— know M1" lid. “ ‘19-"? A- I do, . Q- IIIave
sults or complaints would have been produc- you at any tlmc made an emunmatuon or Mr.
ed by the abnormal conditions that you “lley to asccrtmn what 111.]111‘3‘. It ““57 he
found? A. Well, I would suppose that I 1mg? A‘ “ 0111 ”“91“ gm“? wceks ugo, I
would ﬁnd about the same set of symptoms made an cxummuuou 0t )th \\‘1lcy 101. the
that be complained of. (Objcctcd to. Over ﬁrst and only lune. ,,Q‘ “here." A' In my
ruled.) * ., * Q. Doctor, you have stated o‘fhcc. Q Itemllglou‘. .77 Lexmgtou. .. Q.
that, when you made this examination, you 1C“, the 3111), Doclm, “but “as the extent
found that the patient was suﬁ’eriug from 0f that.cxumumtlon, 3“?)th was the 1:87
. . _ . . _ , sult of It, as to the coudmon you found lum
pun). How dld you detelmme that? A.