Atkins v. Manhattan Railway Co. — 32 N.Y. St. Rep. 214

Majority

p. 214

Mima Atkins, Resp’t, v. The Manhattan Railway Co., App’lt.

(Supreme Court, General Term, First Department

Filed June 6, 1890.)

Headnote

1. Negligence — Evidence—Future results oe injury.

In an action to recover damages for injuries caused by negligence it i improper to ask a medical witness ‘‘ what results are likely to flow iron the injuries ” from which the plaintiff was suffering.

2. Same.

A question to a medical witness as to what symptoms he treated plainl iff for from the time of the accident due entirely to the injuries she re ceived at that time, is also objectionable, as it leaves the witness to detei mine what injuries she received from the accident, and calls not for a: opinion, but for testimony to the absolute fact that the symptoms aros from the injuries which the witness assumed were received,while the jur is ignorant of what the injuries he assumed were.

Appeal from judgment entered upon verdict of a jury an-from an order denying defendants’ motion for a new trial.

Samuel Blythe Bogers, for app’lt; W. J. Curtis, for resp’t.

This action was brought to recover damage for personal injuries alleged to have been sustained because of th negligence of the defendants.

The only questions submitted upon this appeal arise upon ei ceptions to the admission of questions relating to the permanenc of the injuries received.

The following question was asked of one of the medical wi nesses by the plaintiff:

Tell the jury what results are likely to flow from the injurii from which Mrs. Atkins was suffering on the 3d of January, 1888 ___This question was duly objected to and the objection overrule

p. 215

Phis was clearly error. This form of question has been so often jondemned that it seems somewhat remarkable that it should still be persisted in. In the cases of Johnson v. Manhattan R. R. Co., 52 Hun, 111 ; 23 N. Y. State Rep., 388; Strohm v. N. Y., L. E. & Western R. R. Co., 96 N. Y., 306 , and Griswold v. N. Y. C., etc., Railroad Co., 115 id., 61; 23 N.Y. State Rep., 729, such a form oj nterrogatory is expressly condemned.

There was another class of expert evidence, which was adnitted under objection, which was equally obnoxious to the rules of evidence. The physician had testified that he had never seen the fiaintiff before she was hurt to attend her professionally; that he íad no personal knowledge of her medical history prior to the iccident except that which he gained from her in questioning her vhen he first saw her, and subsequently. Ho evidence was given „s to what the plaintiff had told the physician, and this question vas asked:

“For what have you treated Mrs. Atkins; what symptoms have ou treated her for during the tiihe intervening between the 3d of anuary, 1888, to the present time, due entirely to the injuries he received at the time of the accident.” This question was duly bjected to, and objection overruled. This question allowed the fitness completely to usurp the functions of the jury.

It left the witness to determine what injuries the plaintiff had eceived from the accident. It left the witness to determine what er previous condition had been without the jury having any nowledge upon what such determination was based; and the uestion also made the witness testify not as to an opinion, but to íe absolute facts that the symptoms arose from the injuries which íe physician assumed the plaintiff to have received, but what lose were which the physician assumed the jury were entirely jnorant.

• In fact throughout the whole of this case the medical experts ere allowed to testify without the jury having the slightest in>rmation as to upon what such evidence was founded.

The judgment and order appealed from must be reversed, with >sts to the appellant to abide the event.

Ready and Daniels, JJ., concur.