In this сase plaintiff, in August, 1909, was a passenger upon a mixed train of the defendant in the state of Kansas. The train consisted of some 22 freight cars, a baggage car, and a coach. The engine and some of the cars were detached when plaintiff took passage. He entered the coach, and while standing in the aisle at the end of a seat, making some mem-oranda, the engine, with some of the cars, backed up to the coach, the cars coming together, as claimed, with such a sudden jar as to throw him off his feet down in the aisle; that a lady with a child, standing in the aisle some few feet from him, was also thrown down, falling upon him, from which he sustained, as alleged, internal injuries. A trial was - had resulting in a verdict for the plaintiff. Defendant brings the case here fоr review.
“Now, Doctor, taking into considerаtion the history that Mr. McMican gave you of himself — But before I ask that, I will continue the question. Prior to the date of the injury, that is the history he gave you of himself prior to the date of this.injury, and the history he gave you of the injury, and the history he gave you of his condition and fеelings subsequent to the date of the injury, and assuming that at the time of the injury.”
The question then continued with a statement of facts based uрon evidence given in the case. The close of the question was:
“X will ask you to state, taking all these facts into consideration, whether or not the probability is that the condition you found existing at the time you made your examination, as you found it.'could be or might be caused by the injury which he stated he had received?”
Counsel for defendant objected to the question, on the grоund that it was not a proper hypothetical question, because it stated facts not in evidence, and asked the witness tо base his answer on what the plaintiff told him at the time of the examination, which statements were not made under oath; also, uрon the further ground that hypothetical questions should be based upon the sworn statement of witnesses as offered in evidence. The court, before ruling upon the question, inquired of the witness if the question fully covered the statements made:
“Does it fully cover and represent statements made in evidence, and the history of the ease at the time the injury was sustained, or at the time of your examination? Does it fully and fairly represent the statement made to you and the history given to you by Mr. McMican at the time you еxamined him?”
“Yes; I think it does.”
The court thereupon permitted the witness to answer the question, which answer was as follows:
“Well, I can only say, as I said before, that it may have been duo to the injury.”
This evidence was clearly inadmissible, for the reason that it was based, in part аt least, upon what plaintiff told the doctor at the time of the examination relative to his previous history and how the injury oсcurred. The rule is well settled that, where a physician is called to professionally treat a'party, he may give his opiniоn, based upon subjective as well as objective symptoms; but where he is called, not for the purpose of treating the рarty for the ailment, but for the purpose of giving testimony in the case, he can only testify to objective symptoms. Statements made by the plaintiff at such examination are mere self-serving declarations, not made under oath. Shaughnessy v. Holt,
“That immediately thereafter severe and intense pains were, present, in the abdomen of Mr. MeMiean. in the region оf the liver; that, the abdomen began to swell so that within 24 hours it was in a badly swollen condition, and widu in about 2 weeks from the date of that аccident or injury I have described the abdomen became hardened, and that hardened condition continued from that timе to the present.”
The plaintiff’s testimony was as follows, in answer to a question:
“How long after the injury was it that you noticed this swelling began? A.-I noticed that evening that I seemed to be a little bit puffed there, the same evening that I was hurt : but it did not swell up enough to make muсh difference in my size until about— I began to swell more along about the fifth or sixth day after the injury.”
There was nothing in the testimony that indicated that within 24 hours after the accident the abdomen was in a badly swollen condi
The judgment is reversed, with directions to grant a new trial.