60 N.Y.S. 125 | N.Y. App. Div. | 1899
. This judgment will have to be reversed on account of an error in the exclusion of .evidence. The plaintiff was in jured while attempting to drive his horse-and wagon across-the railroad of the defendant near Sparkill, in Rockland’ county.- Within an hour or two after the accident Dr: William C. McKeebee,'a surgeon in the employment of the Erie Railroad Company, called upon the plaintiff and began to treat him for his injuries. This treatment was continued for about four, weeks, with the consent of the plaintiff, notwithstanding that he was informed by Dr. McKeebee that he was entitled to his own physician. During the period of his attendance. the doctor conversed with the plaintiff in regard to the circumstances of the accident, and also obtained his signature to a written state-, ment concerning the manner in which the collision occurred."
Upon the trial Dr. McKeebee was called as a witness in behalf of the defendant and was asked the following question: “ Did the plaintiff state to you on the day when you first called on him that he did not observe the train until he was struck ? ”
This question was objected to by the counsel for the jffaintiff on the ground that it was immaterial, irrelevant and incompetent, and especially, incompetent under section 834 of the Code of Civil Procedure, being a privileged communication between physician and patient,-and having been made by the patient while being treated by the witness, The objection -was sustained and defendant's counsel excepted. '
■ This exception'was well taken. The disclosures prohibited;-by the statute are only such as were necessary to enable the medical -Iban '
If it be necessary to cite authority for these conclusions one case will suffice. (Brown v. Rome, W. & O. R. R. Co., 45 Hun, 439.)
In the written statement concerning the accident, which the doctor procured the plaintiff to sign about a week afterward, is a declaration that the plaintiff did not notice the approach of the train or know that he had been struck by the tráün until informed of the fact by others.; and upon the oral argument it was suggested in behalf of the respondent that, even if an error had been committed in the ruling .which has been considered, it was harmless, inasmuch as the defendant had practically obtained in the written statement the admission or admissions which it sought to prove by Dr.'McKee-bee on the trial. There would be force in this argument if the plaintiff had distinctly acknowledged that he signed the written statement fully understanding its contents. He did nothing of the kind, however. He refused to admit that the written statement -was true as lie understood it when made; lie declared that the persons connected with the Erie Railroad Company made people sign what they didmot know; and he further testified that the doctor told him it was just a matter of form to sign the paper ; that, he did not read
The judgment and order should be reversed ánd a new trial granted, costs to abide the event:
All concurred.
Judgment and order reversed and new trial granted, costs, to abide the event.