Majority
p. 931(166 App. Div. 961) BRACE v. BATH & H. R. CO. (Supreme Court, Appellate Division, Fourth Department. January, 1915.) Argued before KRUSE, P. J., and ROBSON, FOOTE, LAMBERT, and MERRELL, JJ.
Headnote
Evidence <@=547—Opinion Evidence—Examination of Witness.Where it appeared that the conclusion of plaintiff’s expert medical witness was not wholly based upon the hypothesis contained in the question propounded, but was based upon the evidence given in his presence at the trial, a refusal to strike the answer thereto was error.
[Ed. Note.—For other cases, see Evidence, Cent. Dig. § 2364; Dec. Dig. <@=547.]
<§=»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes
Appeal from Trial Term, Steuben County.
Action by Orwell A. Brace, as administratrix, etc., against the Bath & Hammondsport Railroad Company. From a judgment and an order of the Supreme Court, defendant appeals. Judgment and order reversed, and new trial granted.
Robbins, Brown & Phillips, of Hornell, for appellant.
James O. Sebring, of Corning, for respondent.
In this case expert medical evidence was, in a large measure, relied upon to establish the fact that the death of the plaintiff’s intestate was due to the injury sustained. The plaintiff’s physicians said that death was the result of spinal concussion resulting from the accident, while the defendant’s doctors testified that death
p. 932
was due to the independent agency of erysipelas, accompanied by pneumonia. On cross-examination of Dr. Starr, a witness for the plaintiff, it clearly^ appeared that his conclusion was not wholly based upon the hypothesis contained in the question propounded, but that it was based upon the evidence given in his presence, upon the trial. An exception, taken to the refusal of the court to strike out the answer of the witness, presents a reversible error. See Marx v. Ontario Beach H. & A. Co., 211 N. Y. 33 , 105 N. E. 97 .
Judgment and order reversed, and new trial granted, with costs to appellant to abide event.
Cases cited
- Marx v. Ontario Beach Hotel & Amusement Co. 211 N. Y. 33 at 105 p. 932