Loveless v. Manhattan Railway Co. — 24 N.Y. St. Rep. 177

Majority

p. 177

Edwin H. Loveless, Pl’ff and Resp’t, v. The Manhattan Railway Company, Def’t and App’lt.

(New York Superior Court,

General Term,

Filed May 6, 1889.)

Headnote

1. Negigence—Evidence — General opinion op ihysician not evidence.

A physician, a witness on behalf of <he defendant, was asked, on direct examination, if he had heard the testimony that there was a rupture of certain ligaments of plaintiff’s leg. The next question was: what have you to say on the testimony jmu have heard on that subject ? This question was properly excluded, for his general opinion as to the testimony was not evidence.

2. Same—Office op jury to weigh testimony.

A question was asked the same witness: Docs the testimony you have heard on that subject satisfy your mind as to the existence of any such double rupture ? The witness was here asked to weigh the testimony he had heard. This question was properly overruled, as it was the office of the jury to weigh the testimony. Besides, it did not appear from the question what evidence the witness had heard, or as to what part of the testimony the question was pointed.

Appeal from judgment entered on verdict of jury for plaintiff.

Howard Townsend, for app’lt; Haley Fish, for resp’t.

The action was for damages from alleged negligence of defendant’s servants.

The question that, on the trial, was asked of plaintiff, when a witness, and that defendant’s counsel objected to,.

p. 178

and that related to the declarations of Dr. Freer, was not answered, and the next question asked by the court, which was different, substantially, from the first question, was not objected to.

Dr. Stimson, a witness on behalf of the defendant, testified, on direct examination, if he had heard the testimony that there was a rupture of certain ligaments of plaintiff’s leg. The next question was : What have you to say on the testimony you have heard on that subject? This question was properly excluded, for his general opinion as to the testimony was not evidence. The next question was properly overruled. It was : Does the testimony you have heard on that subject satisfy your mind as to the existence of any such double rupture ? The witness was here asked to weigh the evidence he had heard. This was the office of the jury. Beyond this, it did not appear from the question what evidence the witness had heard, or as to what part of the testimony the question was pointed-

The learned counsel for the appellant has urged that the complaint should have been dismissed under the law of the case of Kelly v. The Manhattan Railway Co. (MSS. Ct. of Appeals). The cited case sustains the law as charged by the court below, and the facts of this case differ from the facts in the Kelly Case in such respects, that the judge below was correct in not dismissing the complaint.

Judgment affirmed, with costs.

Freedman and O’Gorman, JJ., concur.