285 A.D. 819 | N.Y. App. Div. | 1955
In an action to recover damages for personal injuries, plaintiff appeals from a judgment in favor of defendant entered upon a jury verdict. Judgment affirmed, with costs. No opinion. Nolan, P. J., Wenzel and MacCrate, JJ., concur; Beldock, J., dissents and votes to reverse the judgment and to grant a new trial, with the following memorandum: This action presented a sharply disputed question of fact. Plaintiff claimed that, as he was crossing a street, he was struck and injured by defendant’s car, which was driven up to an intersection without stopping or diminishing speed until it struck plaintiff. Defendant claimed that he had stopped his car near the intersection and that his car was pushed into plaintiff by another car which struck it from the rear. Early in the trial and before plaintiff testified, his counsel offered in evidence those portions of the hospital record relating to diagnosis, prognosis, and treatment. Defendant’s counsel then offered the remainder of the record. Plaintiff’s counsel objected to the history portion as hearsay. The objection was overruled, and the entire hospital record was received in evidence. The history portion of the record contained a notation that the patient (i.e., plaintiff) stated “ that he was crossing the street and an automobile ran into another automobile that was at a standstill causing this car (standstill) to run into him. His right leg was therefore caught under the wheel of the ear and he suffered a fracture of the right leg. He was given first aid at the scene of the accident and brought here for” X ray. In my opinion, the admission of the history portion of the hospital record as to the manner in which the accident happened was prejudicial error. Those portions of hospital records are admissible under section 374-a of the Civil Practice Act which the Trial Judge finds are made in the regular course of hospital business and that it is the regular course of hospital business to make such record. (Meiselman v. Crown Heights Hosp., 285 N. Y. 389; People v. Kohlmeyer, 284 N. Y. 366.) However, it is not the regular course of the business of a hospital as a hospital to make a detailed record of the exact manner in which an accident occurs, where those details have no bearing on the question of diagnosis or treatment. Assuming that it may have been important in the case at bar for the hospital to know that plaintiff was struck by an automobile in order to help in the determination of the nature and extent of his injuries, it was not necessary for the hospital to know whether the car which struck plaintiff ran into him of its own force or whether it was pushed by another car. The history portion of the hospital record in the case at bar