77 N.Y.S. 776 | N.Y. App. Div. | 1902
The order appealed from was granted by the learned trial justice upon the ground, as appears by his opinion, that error was committed in refusing to charge the jury as requested by defendant’s counsel, which request was substantially as follows: It appearing that
Dr. Weigel made an X-ray examination of plaintiff’s finger's and wrist, at the request of the plaintiff, and the plaintiff having omitted to' ask Dr. Weigel, when called to the witness stand by him, what he discovered from such examination, the jury have the right to assume that Dr. Weigel’s testimony, if given, would have been adverse to the plaintiff upon that point.
At about ten-thirty in tlre.evening of the 25th day of June, 1899, the plaintiff and one Hanify were riding with one Johnson in a wagon drawn by one horse, which was being driven by Johnson along Franklin street in the city of Rochester, N. Y. In crossing Clinton avenue one of defendant’s cars collided with the wagon, overturned it and threw the occupants out, and the plaintiff alleges that he thereby sustained serious injury. He testified, or gave evidence tending to show, that his side was injured in such manner that-a hernia resulted; that three fingers of the left hand and two of the right were put out of joint, and that his wrist was seriously injured, constantly pained and troubled him, and was in such condition at the time of the trial, two years after the accident, that he had to
Upon the cross-examination of the plaintiff it appeared that Dr. Weigel made an X-ray examination of the plaintiff’s wrist and fingers, and Dr. Weigel, who was called as a witness by the plaintiff, •testified upon his cross-examination that he did make such examination, and that he took X-ray photographs of the same, and that he "then had such photographs or the plates in his possession; that he made the examination and took the photographs in December, 1899, -or January, 1900. Plaintiff’s counsel did not ask the plaintiff or Dr. Weigel what the X-ray examination disclosed as to the condition •of the fingers or wrist, nor offer to produce the photographs showing their condition. The omission so to do was the basis of the .request to charge made by defendant’s counsel, and because of "its refusal, to which an exception was duly taken, the order appealed from was made. Whether or not the refusal by the learned trial Justice to charge as requested was reversible error, presents the only -question which need be considered upon this appeal.
Clearly, the l-pquest had reference to a material question of fact. ‘The nature and extent of plaintiff’s injuries were sharply contested. ‘The character of the evidence given in respect to the injury to plaintiff’s side was such as to leave it entirely problematical as to . whether" or not he had a hernia. One or two physicians testified "that he unquestionably had, and another, eminent in his profession, testified positively that he had not, so that it is impossible to say what part of the verdict,- if any, was awarded by the jury on account •of the injury to the side, or that substantially all of it was not •awarded because of the injury which the plaintiff claimed resulted " to his fingers and wrist. Under those circumstances, if the defend
Was the defendant entitled to have the jury charged as requested ? Fair play and common sense would certainly dictate an affirmative answer. Facts'were within the knowledge of the witness called by the plaintiff for the purpose of establishing the seriousness of the injury which he sustained, which concededly would demonstrate whether such injury was as serious as, claimed or not. Hnder those circumstances, plaintiff ought not to be permitted to withhold such information from the jury. It is very natural to suppose that if such information would have tended to corroborate plaintiff’s claim it would have been called out by him, and the conclusion is almost irresistible that he omitted so to do because he knew the information possessed by the physician as the result of the examination made by him would be hurtful to his claim, if communicated to the jury. , .
It is no answer to the proposition that the defendant called out the fact that the X-ray examination had been made, and might have asked what the result of such examination was. The defendant was not called upon to take the chances of an answer by a hostile witness. The question whether or not the plaintiff’s fingers and wrist were seriously and permanently injured was evidently regarded as important, and one which would materially affept the plaintiff’s right to recover,’ or at least the amount of the verdict, and early in the course of the trial, before Dr. Weigel who had made the X-ray examination had been called by the plaintiff and sworn, it appeared that such examination had been made by him; and upon his cross-examination the plaintiff’s attention was again called to the fact, so that the omission to inquire as to what the X-ray examination disclosed cannot be attributed to oversight or mistake.
The. precise question involved was decided by this court in Milliman v. Rochester Railway Company (3 App. Div. 109). That was an action brought to recover damages for injuries sustained by the plaintiff, who was riding with his daughter along one of the
The learned counsel for the plaintiff in the case at- bar concedes,
There is no reason for such a distinction, and if made it would only enable a party to avoid the effect of the rule adverted to, by calling a friendly witness who had knowledge of facts pertinent to a material issue, and by compelling his adversary to take the hazard of interrogating the witness as to such facts.
The defendant was not bound to prove his defense by plaintiff’s expert, physician, who at plaintiff’s request made a careful examination of the injured parts to ascertain the extent of their injury, and the burden was upon the plaintiff not' only to produce him, but also to interrogate him as to facts within his knowledge relating to the important issue or expose himself to the hazard of unfavorable inferences.
A party seeking to recover for serious injury to his side and wrist ought not to be permitted to call as a witness an expert physician, who, at his request, examined and learned the conditions of both, and interrogate him only as to the condition of one, without exposing himself to the hazard of having the jury infer that if the witness had been asked as to the condition of the other his answer would have been unfavorable to the party calling such witness.
The rule laid down in the Milliman Case (supra) is logical. Its application will tend to prevent the suppression of the truth in the trial of causes and .should be adhered to and followed. -
It follows that the order appealed from should be affirmed, with costs.
Adams, P. J., Spring, Williams and Hiscock, JJ., concurred.
Order affirmed, with costs,
Text Book Series.— [Rep.