McKenney v. American Locomotive Co.

Smith,. P. J.: This judgment and order must be reversed for the error of the trial judge in excluding the testimony of Dr. Lord, sought to be adduced by the defendant as to the condition of the plaintiff’s eye prior to the accident. A physician examined in behalf of the plaintiff may be asked on cross-examination whether he had not treated the patient for the same disease at a prior time. (Marquardt v. Brooklyn Heights R. R. Co., 126 App. Div. 212.) He may also be asked respecting what he learned upon a subsequent examination, after his treatment at the time of the accident had ceased. (Powers v. Metropolitan Street Railway Co., 105 App. Div. 358.) This, of course, is upon the assumption that the privilege had been waived by the plaintiff. In the case at bar the plaintiff had sworn that Dr. Lord had treated his eye, and in fact had treated both eyes immediately after the accident; that the right eye was swollen, it seemed to him, as large as his head; that Dr. Lord treated him for some time, and had treated him since; that he doctored the eye; that plaintiff was suffering from headache, and he gave him stuff to put on his head and for the headache at the time; that he went to Dr. Lord after the injury and Dr. Lord fixed him up in good shape and sent him home, and told him to come back to him later on; he told him to come back in a couple of days and he would treat his eye; that the eye was so badly swollen and bruised that he could not treat it at that time, so he said to come back. That the testimony of the plaintiff as to the nature of his injuries and his treatment by the physician waives the privilege of the physician, seems to have been held in Rauh v. Deutscher Verein (29 App. Div. 483). That case is cited with approval in Capron v. Douglass (193 N. Y. 11,18); also in Fox v. Union Turnpike Co. (59 App. Div. 369). The plain import of the plaintiff’s testimony is that the physician declined to treat the eye at that time because of its swollen condition, making it impossible for him to give such treatment. It would seem clear that this testimony would authorize the physician to swear that the eye was not swollen at that time; and also to swear what was its actual condition. Such’was the evidence sought to be given by the defendant and ruled out, as, we think, erroneously by the court. [627] That this testimony was very material is shown by the history of the case. The claim is that the injury produced a cataract upon the eye. That there is a cataract on the eye is admitted. The defense claims that it was a congenital cataract, one which had been there from birth and not one caused by the accident. If so, the defendant should not be required to pay for plaintiff’s misfortune. The judgment and order should, therefore, be reversed and a new trial granted, with costs to appellant to abide the event. All concurred, except Woodward, J., dissenting in opinion in which Lyon, J., concurred.