Speck v. International Ry. Co.

side was several feet high. There was sufficient cleared space on this side of the track for sleighs, although the travel was chiefly along the track. The road on the south side of the tracks was little used. The only snow thrown on that side by the defendant was by a blade attached to the car to clean the rails of snow, and which projected 10 or 12 inches beyond the rail, and the snow deflected upward on that side. The alternating rain and freezing weather made this incline, and also the place immediately adjacent to the south rail, slippery and glary as ice. The place where the cars stopped for the accommodation of passengers was filled by this projecting blade with snow and ice, which was allowed to remain. The condition is thus described by one of the plaintiff’s witnesses:

“There was a lot of snow on the south side of the track, beyond Shearer’s stopping place, west. The stopping place was all right when the scrapers wasn’t coming along. When they came along, they filled up the path again. Maybe they filled it up five or ten times a day.”

The village street commissioner testified:

“I know where Mr. Shearer lives, and that there was a place there for cars to stop. I can’t describe the highway in that place on the 13th day of March, 1905, because I can’t remember. I should say the snow was in the neighborhood of 11 or 12 inches close to the track. Farther back it was about 3 or 4 or 5 feet higher. It ran in a slant toward the track. That runs on a slant. Where their little scraper comes up on the end of the car and cleans the rail, it leaves it on a kind of slant. I don’t know just how deep these scrapers are. I should say 10 or 12 inches. The slant is towards the track. The River Road there is in the village of La Salle, and there are frequent stopping places there for people to get on and off these cars, and were before this accident. There are thickly populated streets—Hamilton street, the Bowen district, connecting with that riverway. Before the accident and up to that time there were a large number of people who lived in the village and worked or had business at Niagara Falls, and took these cars back and forth. At the point where the accident occurred the railway kept the highway in order.”

The court charged the jury that:

“When the defendant undertook to land passengers at the place in question,” it was bound “at all times to afford a reasonably safe place for her to alight from that car and a reasonable opportunity to alight from it in safety.”

I think some obligation of this kind certainly rests upon the defendant. Dixon v. Brooklyn, C. & N. R. R. Co., 100 N. Y. 170 , 3 N. E. 65 ; Flack v. Nassau Elec. R. R. Co., 41 App. Div. 399 , 58 N. Y. Supp. 839 . The burden may be an onerous one to lay on a street-surface road company running through a country district, where.there is a heavy body of snow for a considerable period of time, changing to ice and crust, to keep each stopping place where there are no street intersections free of ice and the snow leveled down. The duty, while existing, must be a relative one, taking into consideration the weather conditions on the one hand and the safety of the passengers on the other. Each case must be dependent upon its own peculiar facts, to be determined by the jury. The defendant selects its stopping place, invites its passengers to take the car and alight at that particular point, and some assurance of safety must accompany this selection and invitation. The passenger has no choice. He must alight where the defendant directs. We cannot say as matter of law, in view of all

the circumstances, that this stopping place was reasonably safe for the plaintiff, as she was assured' by the conductor.

The plaintiff claimed that the synovial membrane of the injured knee became inflamed and a permanent injury resulted. She did not consult any physician until May 2d, when Dr. Welsh, the family physisian, was called. Dr. Welsh, testifying in behalf of the plaintiff, attributed the synovitis to the injury and testified the condition might improve to some extent. The defendant claimed the injury was the result of chronic rheumatism, and evidence was presented tending in some degree to substantiate this claim. Dr. Horton, a witness on behalf of the defendant, testified that he examined and treated the defendant in May, 1905, and in consultation with Dr. Welsh, the attending physician. He was asked:

“State, Doctor, whether you found upon that examination any condition of the plaintiff which you can say with reasonable certainty resulted from any injury which she had received.”

This was objected to as privileged, and the court inquired if the doctor was in consultation with plaintiff’s physician, which was conceded, and the court excluded the testimony after the plaintiff’s counsel declined to waive the privilege. The court, after ruling, remarked:

“He has got to waive it before you go any further with him, it being conceded that he learned what he did learn, and heard what he did hear, if anything, while he was acting in a professional capacity to this woman; and he should not voluntarily, whether he does or not, come here as a witness without the privilege being waived.”

An exception was taken to the exclusion of this testimony. I think this ruling was error. In Morris v. Railroad Company, 148 N. Y. 88 , 42 N. E. 410 , 51 Am. St. Rep. 675 , the action was to recover damages for personal injuries, and the plaintiff had been attended by two physicians, and one testified on the trial in her behalf. The defendant called the other physician for the purpose of showing the extent of the injuries claimed to be sustained by the plaintiff, but his evidence was excluded as privileged. The Court of Appeals reversed the judgment, holding that the plaintiff, by calling one of the physicians, removed the ban as to the other, and waived the privilege inuring to her benefit by the statute.

That case is decisive of the present one, unless the amendments to the Code provisions have nullified its effect. After this decision, section 836 of the Code of Civil Procedure was amended by chapter 53, p. 69, of the Daws of 1899, which retained the prohibitory sections applicable, “unless the provisions thereof are expressly waived upon the trial * * * by the * * * patient,” and which had been added to the statute by chapter 295, p. 580, of the Laws of 1893. The following limiting provision, however, was added: The waiver “provided for must be in open court.” There were amendments (chapter 331, p. 874, Laws 1904, and chapter 331, p. 606, Laws 1905), neither of which change the statute of 1899 so far as it affects the present question.

Since the statute of 1899 became a law the subject has been passed upon by the Court of Appeals several times, and in each case the pa

tient was held to have waived the privilege of the statute by herself ■opening the door and disclosing the condition, which, except for her disclosures, could not have been testified to. Clifford v. Denver & R. G. R. R. Co., 188 N. Y. 349 , 80 N. E. 1094 ; People v. Bloom, 193 N. Y. 1 , 85 N. E. 824 , 18 L. R. A. (N. S.) 898 ; Capron v. Douglass, 193 N. Y. 11 , 85 N. E. 827 . In each of these cases there was no express waiver by word of mouth in open court; but the act of the plaintiff by a proceeding in court was deemed to constitute a waiver, within the purview of section 836 of the Code of Civil Procedure.

For this error I think the judgment should be reversed.

Judgment and order reversed, and new trial granted, with costs to appellant to abide event. All concur for reversal.

McLENNAN, P. J., and WILLIAMS, J., vote for reversal on the additional ground that no actionable negligence of the defendant was shown.