of conflict, our duty would be plain; but we think the Cole case (124 Fed. 113, 59 C. C. A. 593, 63 L. R. A. 416) can be distinguished 340 from the Rees case, and certainly from the one in hand.

In the Cole case, the court said that the sole and approximate cause of the injury was the wanton act of a trespasser over whom defendant had no control, of whose presence it was unaware, and for whose acts it was not liable, and then laid down what, under the facts of that case, we consider to be the true doctrine; that if an injury could not have been foreseen or reasonably anticipated as the natural or probable result of an act of negligence, it is not actionable, because such act is neither the remote nor any cause whatever of the injury.

The test which the authorities furnish for this case is: In view of the condition of the roadbed, the position of the trucks, the rocking motion of the cars, and all the surrounding conditions, ought the conductor, as a reasonable man, to have anticipated or foreseen, as a natural and probable result of the way in which Bennett held his hoe, that this or a similar accident would likely happen? If so, there was negligence of defendant; if not, there was none.

We must not, however, be understood as holding, as matter of law, that the act of the conductor in permitting Bennett to get on the cars with his tools and suffering him to carry the hoe handle in the position he did, was a negligent act, or that it was the approximate cause of the injury. We merely say that, in the light of all the evidence, the case should have been submitted to the jury under appropriate instructions, to determine these questions of fact. The case, we admit, is on the border line; but we think it comes within the rule often announced by this court, which requires submission to a jury. Judgment reversed.

Mr. Justice Gabbert and Mr. Justice Maxwell concur.

A Common Carrier is Under a Duty to Protect Each Passenger from insult, indignities and personal violence, whether the disturbance to the passenger's peace, comfort or personal security comes from another passenger, a trespasser or an employé of the carrier: Nashville etc. Ry. Co. v. Flake, 114 Tenn. 671, 108 Am. St. Rep. 525; Brunswick etc. R. R. Co. v. Ponder, 117 Ga. 63, 97 Am. St. Rep. 152; Birmingham Ry. etc. Co. v. Baird, 130 Ala. 334, 89 Am. St. Rep. 43. The duty of a carrier of pasengers for hire to use all proper means and precautions to protect its passengers against injury caused by the misconduct of other passengers, such as under the circumstances might have been anticipated and could have been guarded against, is not less stringent than the obligation to prevent misconduct or negligence on the part of its own servants: Kuhlen v. Boston & Northern St. Ry. Co., 193 Mass. 341, 118 Am. St. Rep. 516.

WESTERN GLASS MANUFACTURING COMPANY v. SCHOENINGER.

[42 Colo. 357, 94 Pac. 342.]

DISCOVERY-Physical Examination of Plaintiff.-Trial courts have the power to order a medical examination by experts of the person of a plaintiff seeking to recover for personal injuries. The defendant, however, has no absolute right to demand the enforcement of such an order, but the motion therefor is addressed to the sound discretion of the court, and the exercise of such discretion is reviewable by the appellate court, and to be corrected in cases of abuse. (p. 169.)

a

DISCOVERY-Physical Examination of Plaintiff.-When physical examination is desired of the plaintiff in an action for personal injuries, it should be applied for before entering upon the trial, and should then be ordered and had under the direction and control of the court whenever it fairly appears that the ends of justice demand the disclosure or more certain ascertainment of important facts which can be disclosed or ascertained only by such an examination, if the plaintiff's life or health will not thereby be endangered. (p. 170.)

DISCOVERY-Physical Examination of Plaintiff.-An order in an action for personal injuries that the plaintiff submit himself to a physical examination may be enforced, not by punishment as for a contempt, but by staying or dismissing the action. (p. 170.)

DISCOVERY—Physical Examination of Plaintiff.-The refusal of the trial court in an action for personal injuries to order the plaintiff to submit to a physical examination by experts, where he alleges permanent injury but the accident produced no visible wound, and an examination would disclose the nature and extent of the injuries, is such an abuse of discretion as will result in a reversal by the supreme court of a judgment in his favor. (p. 171.)

Vaile, Dunham & McAllister, for the appellant.

Duncan McPhail, for the appellee.

358 MAXWELL, J. Plaintiff below (appellee here), a minor about sixteen years of age, by his next friend and natural 359 guardian, his mother, sued to recover damages alleged to have been sustained through the negligence of appellant in failing to provide suitable and safe machinery and appliances with which to perform the work appellee was required to do.

The complaint alleged that the injuries received resulted in total and permanent disability. Eight days preceding the date when the cause was set for trial, a demand in writing was made by the attorneys for defendants upon the attorney for plaintiff for an opportunity to have a physical examination of plaintiff made, before the day of trial, by a competent physician to be selected by the attorneys for defendant, or by the judge of the court before whom the case was to be

tried. This demand was refused upon the grounds, as stated, that the accident to plaintiff had happened so long ago that it would not be fair to plaintiff to have a physical examination of plaintiff made at that time. About thirteen months had elapsed between the accident and the date of the demand. On the day of the trial, before the taking of testimony began, defendant moved the court for an order requiring plaintiff to submit to a physical examination by some reputable and competent physician, to be appointed by the court. The motion set forth the necessity for such examination, the written demand for same, and was supported by an affidavit. This motion was denied, an exception saved, and the assignment of error based thereon will be the only one considered in the determination of this appeal.

The question thus presented is a very important one, and is submitted to this court for the first time, although the practice of granting such motion prevails in many of the nisi prius courts of this state. Courts are instituted by the state to administer, so far as possible, impartial justice to contending parties. The plaintiff, of his own motion, enters 360 the court, seeking justice for an alleged wrong inflicted, or to prevent a wrong threatened. In such contests it is the duty of the court to bestow upon the litigants full and exact justice. This cannot be done until the court obtains the full and exact truth touching all matters in issue, so far as the same can be obtained by exhausting all methods available to the full attainment of that end. Plaintiff is a voluntary actor, appealing to the sovereign power of the state for justice, impliedly assenting to do justice to the other party, and impliedly agreeing, in advance, to make any disclosure which is necessary to be made in order that justice may be done. Approximate justice, as the best the courts can do in the administration of the law, must often be accepted, but while the law is satisfied with approximate justice where exact justice cannot be obtained, the court should recognize no rules which stop at the first, when the second is within reach. In actions of this character a plaintiff has under his control evidence which will reveal the truth more clearly than any other which could be introduced.

In the dissenting opinion of Mr. Justice Brewer, in Union Pacific Ry. Co. v. Botsford, 141 U. S. 250, 11 Sup. Ct. Rep. 1000, 35 L. ed. 734, it is said: "The end of litigation is justice. Knowledge of the truth is essential thereto. It is conceded, and it is a matter of frequent occurrence, that in the trial of suits of this nature the plaintiff may make in the

courtroom, in the presence of the jury, any not indecent exposure of his person to show the extent of his injuries; and it is conceded, and also a matter of frequent occurrence, that in private he may call his personal friends and his own physician into a room, and there permit them a full examination of his person, in order that they may testify as to what they see and find. In other words, he may thus disclose 361 the actual facts to the jury if his interests require; but by this decision, if his interests are against such a disclosure, it cannot be compelled. It seems strange that a plaintiff may, in the presence of a jury, be permitted to roll up his sleeve and disclose on his arm a wound of which he testifies; but when he testifies as to the existence of such a wound, the court, though persuaded that he is perjuring himself, cannot require him to roll up his sleeve and thus make manifest the truth; nor require him, in the like interest of truth, to step into an adjoining room, and lay bare his arm to the inspection of surgeons. It is said that there is a sanctity of the person which may not be outraged. We believe that truth and justice are more sacred than any personal consideration; and if in other cases, in the interests of justice, or from considerations of mercy, the courts may, as they often do, require such personal examination, why should they not exercise the same power in cases like this, to prevent wrong and injustice?"

If the court is powerless, in actions for personal injuries, to require a plaintiff to submit himself to a physical examination, to the end that the truth as to their nature, effect and possible duration may be ascertained, when he, by his suit, has made them the subject of judicial investigation, then the law will permit him to disclose just so much and such parts of the facts as, in his judgment, would benefit his case, at the expense of his adversary, and to invoke the court's aid to compensate him for the injury through a partial and onesided investigation. Under such circumstances, the court would be an instrument for the accomplishment of the grossest injustice, and, therefore, the object for which courts are instituted would be defeated.

On the other hand, if the plaintiff's claim is meritorious; if he has suffered the injuries he complains 362 of, and on account of which he prosecutes his action, he has nothing to fear from the most rigid examination. His case will only be strengthened thereby.

Beginning with the case of Lloyd v. Hannibal etc. Ry. Co., 53 Mo. 509, decided in 1873, there have been many adjudications upon the power of trial courts to order a physical exam

ination of the plaintiff, in suits for personal injuries, upon the request of defendant. In this first case the power was denied, but it has since been affirmed by the supreme court of Missouri in Shepard v. Missouri Pac. Ry. Co., 85 Mo. 629, 55 Am. Rep. 390; Sidekum v. Wabash etc. R. R. Co., 93 Mo. 400, 3 Am. St. Rep. 549, 4 S. W. 701; Owens v. Kansas City etc. Ry. Co., 95 Mo. 169, 6 Am. St. Rep. 39, 8 S. W. 350.

In 1877, in the well-considered case of Schroeder v. Chicago etc. Ry. Co., 47 Iowa, 375, the power was affirmed, and the rule there announced has been followed in the following cases: Alabama G. S. R. Co. v. Hill, 90 Ala. 71, 24 Am. St. Rep. 764, 8 South. 90, 9 L. R. A. 442; King v. State, 100 Ala. 85, 14 South. 878; Sibley v. Smith, 46 Ark. 275, 55 Am. Rep. 584; St. Louis etc. R. Co. v. Dobbins, 60 Ark. 481, 30 S. W. 887, 31 S. W. 147; Richmond & D. R. Co. v. Childress, 82 Ga. 719, 14 Am. St. Rep. 189, 9 S. E. 602, 3 L. R. A. 808; South Bend v. Turner, 156 Ind. 418, 83 Am. St. Rep. 200, 60 N. E. 271, 54 L. R. A. 396; Pennsylvania Co. v. Newmeyer, 129 Ind. 401, 28 N. E. 860; Hall v. Manson, 99 Iowa, 698, 68 N. W. 922, 34 L. R. A. 207; Atchison etc. Ry. Co. v. Thul, 29 Kan. 466, 44 Am. Rep. 659; City of Ottawa v. Gilliland, 63 Kan. 165, 88 Am. St. Rep. 232, 65 Pac. 252; Atchison etc. Ry. Co. v. Palmore, 68 Kan. 545, 75 Pac. 509, 64 L. R. A. 90; Belt Electric L. Co. v. Allen, 102 Ky. 551; Graves v. Battle Creek, 95 Mich. 266, 35 Am. St. Rep. 561, 54 N. W. 757, 19 L. R. A. 641; Hatfield v. St. Paul & D. R. Co., 33 Minn. 130, 53 Am. Rep. 14, 22 N. W. 176; Wanek v. Winona, 78 Minn. 98, 79 Am. St. Rep. 354, 80 N. W. 851, 46 L. R. A. 448; Shepard v. Missouri Pac. Ry. Co., 85 Mo. 629, 55 Am. Rep. 390; Sidekum v. Wabash etc. R. R. Co., 93 Mo. 400, 3 Am. St. Rep. 549, 4 S. W. 701; Owens v. Kansas City etc. R. Co., 95 Mo. 169, 6 Am. St. Rep. 39, 8 S. W. 350; Stuart v. Havens, 17 Neb. 211, 22 N. W. 419; Sioux City & P. R. Co. v. Finlayson, 16 Neb. 578, 49 Am. Rep. 724, 20 N. W. 860; Brown v. Chicago etc. R. Co., 12 N. D. 61, 102 Am. St. Rep. 564, 95 N. W. 153; Miami & M. T. Co. v. Bailey, 37 Ohio St. 104; Hess v. Lake Shore etc. R. Co., 7 Pa. Co. Ct. 565; Lane v. Spokane Falls etc. Ry. 363 Co., 21 Wash. 119, 75 Am. St. Rep. 821, 57 Pac. 367, 46 L. R. A. 153; White v. Milwaukee City R. Co., 61 Wis. 536, 50 Am. Rep. 154, 21 N. W. 524; O'Brien v. La Crosse, 99 Wis. 421, 75 N. W. 81, 40 L. R. A. 831.

Opposed to the doctrine announced in the above cases, the only cases which have come to our knowledge are Union Pac. Ry. Co. v. Botsford, 141 U. S. 250, 11 Sup. Ct. Rep. 1000, 351