Page:The Green Bag (1889–1914), Volume 16.pdf/764

 Notes of Recent Cases. Reporter 520; State r. Craig, 80 Maine 85, 13 Atlantic Reporter 129; Blydenburgh v. Miles, 39 Connecticut 484; State v. O'Neil, 58 Vermont 140; 2 Atlantic Reporter 586; 56 American Reports 557. Furthermore, the court considers State v. Rodman & Cobb, 58 Minnesota 393, 59 Northwestern Re porter 1098, as controlling-. RAILROADS. (ASSAULT ON PASSENGER BY BRAKEMAN — PHYSICAL EXAMINATION — INDECENT EX POSURE.) SUPREME COURT OF IOWA.

Garvik т-. Burlington, C. R. & N. Ry. Co., loo Northwestern Reporter 498, was an ac tion against a railroad company for rape on a female passenger, alleged to have been com mitted by defendant's brakeman. As a de fence it was pleaded that by reason of an in jury, the brakeman was impotent. In sup port of this issue the court permitted a phybical examination of the brakeman by the jury; but this examination the supreme court regards as highly improper, saying, "We do not think it should have been per mitted. There was no showing that the private parts were in the same condition as they were when the assault is said to have been committed. Moreover, the ultimate question was not the exact condition of this member, but whether or not the owner was physically incapacitated from having sexual intercourse. We doubt if this could be de termined by a non-expert from a mere ex amination of his penis. Again, the examina tion was indecent, and should not have been tolerated. As said by Ryan, C. J., in Brown v. Swineford, 44 Wis. 282, 28 American Re porter 582: 'If the condition of any private part of the body of any party, male or fe male, is material on any trial, it should be privately examined by experts, out of court, arid expert testimony be given of it.' He further said of such an examination as was here made: 'It was improper and indecent, well calculated to disgrace the administra tion of justice, and to bring- it into ridicule, if not into contempt.' In this case expert witnesses were examined, and it was thought

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necessary for them, after examining the wit ness' private parts, to give professional opinions as to his ability to have sexual in tercourse. Wounds resulting from injuries may undoubtedly be exhibited in open court to the jury, but even here no indecent exposures should be made. There is also a species of evidence denominated as 'real,' which may often be produced before a jury, but we hardly think this case comes within that rule. Authority to view the premises which obtains in a cer tain class of cases will not sustain the procedure adopted in this case. Moreover, the evidence was not demonstrative in char acter. We have found no authority which justifies the ruling made by the trial court, and doubt if there is any to be found in the books. Be it remembered that plaintiff was entitled to be present during the entire trial with her counsel, and that there were others aside from the witness Dye who were en titled to be present at the examination of his private parts. Let it be said, once for all, that we cannot lend our support to such a shocking and indecent performance as was permitted in this case." RAILROADS. (LIABILITY OF FOREIGN RAILROAD CAR то SEIZURE or ATTACHMENT.) SUPREME COURT OF MINNESOTA.

In Comiery v. Quincy, O. K. C. R. Co., 99 Northwestern Reporter 365, it was at tempted to obtain jurisdiction of a foreign railroad company by attaching a car of such company temporarily in the State. It ap peared that the railroad company had sent a car into the State with freight to be delivered there, and the car was to be re-loaded and in the cus tomary and usual course of business for warded to the State from which it came. The court, says that, strictly speaking, the car was subject to attachment of garnishment una technical reading of a statute providing that a creditor of a foreign corporation may by attachment or garnishment acquire a lien on property of such corporation within the State, but does not think that this conclusion