202 A.D. 270 | N.Y. App. Div. | 1922
The action was brought to recover for the pecuniary loss of the plaintiff resulting from personal injuries inflicted on his wife in a collision between two of the defendant’s street cars. The only questions raised upon this appeal are with reference to alleged errors in ruling by the justice presiding.
One question was challenged by the appellant as an improper hypothetical question as assuming facts not before the jury. The question was propounded by counsel for the plaintiff to Dr. Cole-grove who had testified to a personal examination of the plaintiff when called in consultation shortly after the accident which occurred on February 12, 1919, and to examination on the day of the trial and once intervening, which it seems was just prior to the trial of the action brought by the wife for her personal injuries. He testified that he had made a physical examination of the plaintiff on these occasions and gave in detail what he found as to her condition. The question propounded was as follows: “ Q. Now assuming Doctor that this woman was well preceding Feb. 12th, 1919, and on that day she sustained a fall in a street car collision and coupling these premises with your subsequent examination are you able to say with reasonable certainty as to the cause of the condition you found? ”
It is also charged that it was error to admit the testimony of Dr. Colegrove that shortly before the trial he had examined the plaintiff’s wife and that “ she complained still of' headache and inability to read or withstand any physical exertion without a great fatigue or without tiring her a great deal.” A motion was made to strike .out this testimony for the reason that it did not consist of statement made by the patient for the purpose of treatment and relating to the existing condition of the patient. It is quite apparent that while Dr. Colegrove had shortly after the accident examined the patient as a consultant and for the purpose of aiding in her proper treatment, he had examined her on the two subsequent occasions, once before the wife’s trial and once before the present trial, for the purpose of testifying. I think the question was improper under the authorities cited by the appellant, particularly Davidson v. Cornell (132 N. Y. 228, 237), but I am not satisfied that the error was so prejudicial as to require
The judgment and order should be affirmed, with costs.
Judgment and order unanimously affirmed, with costs, the court being of the opinion that the errors, if any, did not affect the substantial rights of the parties and should be disregarded under section 106 of the Civil Practice Act.