200 N.Y. 393 | NY | 1911
This is an action to recover damages for personal injuries sustained by the plaintiff by falling upon a board sidewalk in the city of Syracuse. The only questions presented by the appeal relate to rulings as to the admission of evidence and to an alleged error in the charge.
The testimony of the plaintiff herself tended to show that she had suffered a constant pain in her left side as a result of the accident which had disabled her from work to a considerable extent. The accident occurred on March 2, 1907. A physician who was called as a witness in her behalf testified that he performed an operation upon her for fixation of the kidney and removal of the right ovary in August, 1906, but she fully recovered from the operation and the last time he saw her before the accident her health was normal. The examination of the witness proceeded as follows:
"Q. Assuming Miss Cross had not had any pain in her left side previous to the time of this accident and that on March 2d she was walking north on Butternut Street and stepped into a hole with her left foot and fell on her left side, and that she was black and blue on the left side, her hip, side and shoulder were black and blue, and that since that time she experienced severe pain in that left side, are you able to state with reasonable certainty in the ordinary course of nature, how long those severe pains will continue in her left side?
"Mr. Magee — We object to it as incompetent and improper, and no sufficient foundation laid for the same.
"The Court — Objection overruled.
"Mr. Magee — Exception. *396
By Mr. F.J. Cregg:
"Q. First answer that whether you can answer that with reasonable certainty.
"A. I can hardly answer that question that way; I would say yes, however."
It is insisted in behalf of the appellant that the trial court erred in permitting this testimony to be given because there was no proof that the opinion of the witness was based upon a reasonable certainty. I quote from the appellant's brief: "It is elementary that the proper question in a case of this character to ask a medical expert is, whether he is able to testify with reasonable certainty, upon the subject. If such a question is answered in the negative, the expert should not be permitted to testify further on that subject. If the answer is in the affirmative, he is permitted to testify, if the question is material, proper, based upon the evidence in the case, and is a proper subject of expert testimony."
This proposition is based upon a misapprehension which appears to be quite general in the profession as to what was decided by this court in the case of Strohm v. N.Y., L.E. W.R.R. Co. (
I may add that while a member of the Appellate Division in the second department, I had occasion to call attention to this distinction in Clegg v. Metropolitan Street Ry. Co. (
It follows that no error was committed by the trial court in the case at bar in receiving the evidence to which the criticism of the appellant is directed.
Another physician who had performed several operations upon the plaintiff prior to the accident was called as a witness for the defendant and testified over the objection and exception *399 of the plaintiff to the character and effect of these operations. The learned trial judge referred to the testimony of this witness in his charge to the jury as follows:
"It is for you to say from this evidence what the extent of damages was that were brought about by this accident, and in doing that, as I say, eliminate all question of feeling as to this physician; it is very easy to see how a physician may be brought into court. This to some extent has been public property. Perhaps there ought to be said a word of defence of this young physician; that there is nothing he has done here he should be too severely criticised for, although we appreciate the fact that the members of the bar and of the medical profession are privileged from divulging what occurs between them and their clients or patients, and yet the allegation of the plaintiff's complaint in this case, which was drawn some time in August last, expressly calls attention to the fact that this woman had suffered an injury to the ovary and uterus, I believe, and perhaps the discussion of these matters, the condition of those things arising out of this case and the unfortunate condition of this lady in previous years might have thrown this young physician off his guard inadvertently and he was willing to disclose what occurred at the hospital. We can say with the utmost confidence that the medical profession is an honorable profession, and it is very seldom that any of them do anything that can be criticised. And I cannot as presiding at this court permit that to pass. I want to say that there are many extenuating circumstances perhaps why this young physician stated to the representative of the city the condition of things which he discovered there. So that it is well for us to use charity in viewing the acts of all the parties connected with this case. Feeling here seems to run high."
Counsel for the defendant excepted to these remarks, saying that inasmuch as the witness had the absolute right to give the fact and truth and the city had the absolute right to elicit the fact and truth from him he needed no charity and his testimony was not open to criticism. The court responded that the witness was criticised rather sharply by the plaintiff's *400 attorney because he had not availed himself of his privilege; and suggested that the remarks in the charge were made in consequence of that fact. It does not seem to me that the exception to what the trial judge said in this respect is available here as a ground for reversing the judgment. It may often happen in the course of a trial that some occurrence will warrant comment by the court on the conduct of a witness — perhaps by way of censure and perhaps by way of commendation. Such comment when within reasonable bounds and appropriate to the character of the occurrence can hardly be regarded as a legal error which is the foundation of an exception. It is almost always a matter of discretion with which this court cannot interfere, although the Appellate Division, if the comments of the trial court have exceeded proper limits, may afford relief where it concludes that the appellant has been injured thereby.
I think that no error has been brought to our attention by counsel for the appellant, and I advise an affirmance of this judgment, with costs.
CULLEN, Ch. J., HAIGHT, WERNER, HISCOCK, CHASE and COLLIN, JJ., concur.
Judgment affirmed.