The defendant is a domestic corporation and the owner of a turnpike road which includes the eastern approach to the Verplanck bridge in the town of Westerlo, Albany county. The bridge is a single span iron structure, and the eastern approach is a fill between bluestone retaining walls commencing at the level of the highway eighty-eight and nine-tenths feet from the bridge and extending to the bridge where it is. a little over ten feet above the adjoining lands. The approach is twenty-five feet wide at its commencement and eighteen and seven-tenths feet wide at the bridge, and at the time of the accident alleged in the complaint, and for more than one year prior thereto, it had no railings or guards.
On the 14th day of November, 1896, between seven and eight ■o’clock in the evening, the plaintiff and her son-in-law, Frank Reynolds, started from the plaintiff’s home in Ravena in an open wagon ■drawn by one horse to go to her daughter’s residence in the town of Westerlo. The horse was a gentle one, and Reynolds, who did the driving, was acquainted with the horse and accustomed to driving horses. The Verplanck bridge was on "the usually traveled road from Ravena to Westerlo. It was a starlight night, and between nine and ten o’clock, as Reynolds was carefully driving up the approach of the bridge, and when within about fifty-six feet of the bridge, the horse, for some reason not disclosed in the record, suddenly shied and went over the side of the approach into the adjoining field, carrying with him the wagon and its occupants. The plaintiff fell from the wagon upon the ground in the field and immediately became unconscious and remained in an unconscious condition until Reynolds had secured the horse and had gone to a farm house some 500 feet away and obtained help, after which the plaintiff was assisted to the farm house, and she there remained until the next day, when she was taken in a carriage to her home in Ravena.
The questions, the answers to which are controlling in this case so far as the right to a recovery is concerned, are: First. Was the approach to the bridge, without guards or railings thereon, a dangerous place for ordinary travel ? Second. Was the accident to the plaintiff one that should have been reasonably anticipated by the defendant, or was it one that would naturally have occurred to a prudent man as likely to happen ?
The trial court allowed the defendant to show that no accident had occurred on this approach to the bridge prior to the time mentioned in the complaint. This evidence was proper for the jury to consider in determining whether it was a dangerous place and whether the accident was one that should have been reasonably anticipated. The fact that no accident had previously occurred at this particular place is not in itself a defense. (Maxim, v. Town of Champion, 50 Hun, 88; S. C., 119 N. Y. 626; Wood v. Town of Gilboa, 76 Hun, 175; Wood v. Third Avenue R. R. Co., 91 id. 276 ; Quill v. Empire State Telephone Co., 13 Misc. Rep. 435 ; Cleveland v. New Jersey Steamboat Co., 125 N. Y. 299 ; Burns v. City of Yonkers, 83 Hun, 211; Ivory v. Town of Deerpark, 116 N. Y. 476.)
The turnpike was a prominent highway leading from the direction of the village of Ravena into; the interior of the county, and was much used, and we do not think that this court should say, as a matter of law, that the approach to the bridge was reasonably safe without guards or railings, or that the verdict is so entirely against the weight of evidence as to require a reversal of the judgment entered thereon.
This question was objected to by the plaintiff as incompetent; that the witness cannot state what took place at the time he was called as a physician; that the facts that he obtained in prescribing for the plaintiff are inadmissible under section 834 of the Code of Civil Procedure. The court said: “ I think you are limited (on your claim that there was a waiver) to a denial of her testimony here • in court by the testimony of the physician.” To this the defendant excepted. This was followed by many questions, of which the following are samples : “ Q. Did you make a critical examination after having her undressed and parts exposed to view and touch; did you make a complete, critical and thorough examination of the parts that she complained of having; pain in ? ” “ Q. Did you make an examination of the heart and lungs and a complete and thorough investigation to discover the existence of organic disease ? ”
To these and similar questions the same objection was made as to-the previous question, and the same ruling was made by the court. The only evidence given by the plaintiff on her examination with reference to what was said and done by Dr. Powell when he was called to treat her other than a statement that he gave her internal remedies which she used, was brought out by the defendant on the cross-examination of the plaintiff, and is as follows : “ Q. What did the doctor do for you then ? A. He examined my back and examined me. He ordered alcohol. ■ Q. What did he give you ? A. He gave me some medicine, that is all I can tell you; something in a glass, two or thrée different kinds.”
The evidence sought to be obtained by the questions' objected to by the plaintiff is clearly within the prohibition contained in section 834 of the Code of Civil Procedure, and unless it was expressly waived by the plaintiff, as provided by section 836 of the Code of Civil Procedure, the rulings of the trial court, were right.
The plaintiff, while on the witness stand, detailed her alleged
In the case of Rauh v. Deutscher Verein (29 App. Div. 483) the plaintiff testified in regard to an alleged accident, and as to the operations that were performed upon her at the hospital and as to
The case of Treanor v. Manhattan Railway Co. (28 Abb. N. C. 47), which is an authority in favor of defendant’s contention, has been disapproved by the Court of Appeals. In the case of Morris v. New York, Ontario & Western R. Co. (148 N. Y. 88), the Court, in referring to the Trecmor case, says : “ The one last cited «ertainly pushes the principle too far.” .
The determination of the question of an express waiver depends very largely upon the extent to which the patient in her testimony has entered into the details of the consultations with her physician.
We think, upon principle and authority, that the evidence of Dr. Powell was properly excluded.
Judgment and order unanimously affirmed, with costs.