
    Harry Griffiths, an Infant, by Henry W. Griffiths, his Guardian ad Litem, Appellant, v. Metropolitan Street Railway Company, Respondent.
    
      .'Negligence—injury to a boy standing on a railroad track waiting for ears to pass on . another track, by a car approaching in full sight of him—privileged communications to a surgeon.
    
    Where the -evidence in an action to recover damages for personal injuries tends to show that the plaintiff, a hoy seven or eight years of age, stood upon one of the defendant’s street railway tracks in fiill sight of cars approaching on that track, waiting for cars to pass on the other track, and that after he had stood there ten or fifteen seconds he was struck by a car which had given no signal of its approach, the questions of the defendant’s negligence, and of the plaintiff’s contributory negligence should be submitted to the jury. .
    When .a surgeon in the employ of the defendant, who happened to he in the vicinity of the accident at the time it occurred, and who volunteered his services -to stop the flow of blood until the ambulance arrived, subsequently visited the plaintiff at the hospital to which he was taken, and without informing the plaintiff that he came as a representative of the defendant, asked him questions concerning the details of the accident, the replies given by the plaintiff to such questions are privileged.
    VAN Brunt, P. J., and Laughlin, J., dissented from the latter proposition.
    
      Appeal by the plaintiff, Harry Griffiths, an infant, by Henry W. Griffiths, his guardian ad litem, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 17th day of January, 1901, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term, and also from an order entered in said clerk’s office on the 10th day of October, 1900, setting aside the verdict of a jury in favor of the plaintiff for $5,000 and dismissing the complaint.
    
      Ferdinand F. M. Bullowa, for the appellant.
    
      Charles F. Brown for the respondent.
   Ingraham, J.:

This case comes before us upon an appeal from a dismissal of the complaint upon a trial before a jury. After the testimony was completed the defendant moved to dismiss the complaint upon the ground that the plaintiff had not shown by preponderance of proof that he was free from contributory negligence, and that the accident was caused solely by the negligence of the defendant. The court reserved the decision of this motion until after the jury should have passed upon specific questions submitted to them. The jury answered these questions in favor of the plaintiff, finding that the defendant was guilty of negligence, and that the plaintiff was not guilty of contributory negligence, and assessed the damages at $5,000. After this verdict had been rendered the court granted the defendant’s motion to dismiss the complaint, upon, which dismissal judgment was entered and the plaintiff appeals to this court.

The decision of this motion was reserved under the permission given by section 1187 of the Code of Civil Procedure. That section provides that “ When a motion is made to nonsuit the plaintiffs or for the direction of a verdict, the court may, pending the decision of such motion, submit any questions of fact raised by the pleadings to the jury or require the jury to assess the damage. After the jury shall have rendered a special verdict upon such submission, or shall have assessed the damage, the court may then pass upon the motion to nonsuit or. direct such general verdict as either party may be entitled to.”

The first question we have to determine is whether the court correctly dismissed the complaint. I am satisfied, after a consideration of this testimony, that the question as to the plaintiff’s contributory negligence and the defendant’s negligence was for the jury. The jury could find from this testimony that the plaintiff walked out upon the track and stood there ten or fifteen seconds waiting for cars to pass upon the other track in full sight of the motorman. This was sufficient time to enable the motorman to stop the car, or, at least, give a signal of the approaching car to warn the plaintiff. The jury could find that the car ivas neither stopped nor a signal given. Notwithstanding this the car proceeded until the plaintiff was run over. This would certainly justify a finding that the motorman was negligent in running down the boy standing upon the track. As to the plaintiff’s contributory negligence, I also think that was a question for the jury. The plaintiff, at the time of the accident, was between seven and eight years old, and the same care is not to be expected of a’ boy of this age as of one of more mature years. Considering the age of the plaintiff and the surrounding circumstances, I do not think that he would be said to be guilty of contributory negligence as a matter of law. The dismissal of the complaint must, therefore, be reversed.

The complaint having been dismissed there could be no motion for a new trial, and the questions presented upon such a motion are not before us. I have, however, examined the record with care and. have come to the conclusion that the verdict was not against the weight of evidence, so that neither the court below nor this court would be justified in granting a motion for a new trial if one had been made.

The only remaining question insisted upon by the defendant is the exclusion of the testimony of a Dr. Moorhead who saw the plaintiff immediately after the accident. 'This witness was in the neighborhood. He was one of the surgeons employed by the defendant. After the plaintiff was taken to a drug store he went in to see him, and volunteered his services to stop the flow of blood until the ambulance arrived. He subsequently saw the boy at the hospital, ten days after the accident. The boy was then in bed in the ward, and the witness asked him. to tell the details of his accident, to which the plaintiff made a reply. He certainly, while thus attending to the boy to stop the flow of blood, occupied to the boy the relation of physician, and when the witness subsequently went into the hospital, after the amputation of the boy’s leg, and asked him questions as to the accident, the boy was justified in treating him as a physician who had attended him. His going to the hospital, having no previous acquaintance with the boy, no interest in the case except in his professional capacity, and attempting to-obtain from him declarations as to the accident, was unauthorized and impertinent. Declarations made by the person thus severely injured, made to a physician under such circumstances, would certainly be privileged. Except as a physician, he had no business in the hospital. He did not inform the boy that he came as a representative of the defendant, and for the purpose of extracting from him an admission which would tend to relieve the defendant from liability. Under such circumstances, I think, the boy was quite justified in considering a person who thus addressed him as a physician and in answering his questions freely and frankly, without considering that his answers would be used against him as admissions.

I agree, therefore, with the learned trial judge that this testimony was correctly excluded ; and, I think, no error was committed upon the trial which justifies us in awarding a new trial. By section 1187 of the Code, before referred to, it is provided that on an appeal from the judgment entered upon such nonsuit or general verdict, such special verdict or general verdict shall form a part of the record, and the Appellate Division may direct such judgment thereon as either party may be entitled to.” Upon this appeal,, therefore, we think the nonsuit should be set aside and a judgment directed upon the -verdict, with costs.

O’Brien and Patterson, JJ., concurred; Van Brunt, P. J.„ and Laughlin, J., dissented.

Laughlin, J. (dissenting):

This action is brought to recover for personal injuries alleged to have been sustained by the plaintiff through the negligence of the defendant in operating, a car on its uptown track on Columbus avenue between Ninety-third and Ninety-fourth streets, between the hours of five and six o’clock p. m., on the 17th day of April, 1899,, in consequence of which it is alleged that while plaintiff was lawfully crossing the avenue in the exercise óf due care he was struck by the car, thrown to the ground and Ms ankle Was so crushed as to require amputation.

The learned trial judge, reserved his decision on a motion for a nonsuit at the close of the plaintiff’s case, and, on a .motion for the dismissal of the.complaint at the close of all the evidence and pending his decision thereon, submitted the material questions of fact to the jury under section 1187 of the Code of Civil Procedure. The jury found that the injuries were caused by the negligence of the defendant, and that plaintiff was free from contributory negligence and assessed .the damages at the 'sum of $5,000. The court then further reserved its decision on said motion for a new trial made by defendant upon the minutes, of the. court, upon all the grounds specified in section 999 of the Code of Civil Procedure. Subsequently the motion for a dismissal of the complaint was granted, as was also the motion to set aside the verdict, but a new trial was not ordered. The appeal is from the order entered upon these decisions which recites that the complaint was so dismissed and that the motion to set aside the verdict was granted, and also from the judgment entered which dismisses the coniplaint pursuant to said-order without awarding a new trial.

The first question, therefore, presented by the appeal is whether the evidence required the submission of the case to the jury. If it did, the judgment dismissing the complaint is erroneous and must be reversed. If there was any evidence tending to show that plaintiff was free from contributory negligence and that defendant was guilty of negligence which caused the injuries, the plaintiff thereby established a prima facie case for submission to the jury, and -while the court' might- in a proper case, set aside the verdict as against the weight of evidence and .grant a new trial, the complaint could not be dismissed and the action be thereby terminated without the verdict of a jury, it being now well settled that such controverted questions of fact must be ultimately determined by the jury and that the court may not usurp the functions of a jury and finally pass upon questions of fact. (McDonald v. Metropolitan St. Ry. Co., 167 N. Y. 66 ; Costello v. Third Ave. R. R. Co., 162 id, 608; Williams v. Delaware, Lack. & West. R. R. Co., 155 id. 158.)

Plaintiff resided at 101 West Ninety-third street, that being the northwesterly corner of Ninety-third street and Columbus avenue. At the time of the accident the plaintiff was seven years and . nine months old. About five o’clock in the afternoon he was sent out on errands by his mother. He first went to Boch’s grocery store, which was on the easterly side of Columbus avenue, the third door south of Ninety-fourth street, about two-thirds of the block north of Ninety-third street. According to his evidence, after making some purchases at the grocery he entered a florist’s store which was next door to the south and made inquiries about some palm plants and then passed directly out to the curb. He testifies that he stood on the curb a few minutes watching some men working at a manhole on the same side of the street and a little to the south; that he then started directly across the street to a news stand to get a paper ; that when he came near the first or north-bound track he stopped to allow a car to pass northerly thereon; that he then looked to the north and south and saw a north-bound car at Ninety-third street-And a south-bound car at Ninety-fourth street but none nearer, and, thinking he could get across, he proceeded to cross the north-bound track; that after stepping upon this track, he paused for the car .approaching on the south-bound track to pass, and it being closely followed by another, he remained on the north-bound track awaiting the passage of the second south-bound car, and while it was passing .he looked southerly and observed a car about three houses or fifty or seventy-five feet distant approaching rapidly on the track on which he was standing; that he then turned around to step off the track toward the east, and just as he got turned and near the edge of the rail, the car struck him inflicting the injuries complained of.

This testimony of the plaintiff is corroborated by that of several other witnesses. Other evidence was offered by the plaintiff tending to show that the car was running at the full Speed of the cable and that its speed was not slackened nor was any signal or warning given until after it struck the boy. In these circumstances the question of plaintiff’s freedom from negligence and of defendant’s negligence should have been submitted to the jury. (McDonald v. Metropolitan St. Ry. Co., supra; Costello v. Third Ave. R. R. Co., supra; Legare v. Union Railway Co., 61 App. Div. 202; Dunican v. Union Railway Co., 39 id. 497, 501.)

The complaint having been dismissed, on the motion for a non-suit and for its dismissal at the close of the evidence, the decision on which was reserved pending the submission of the special issues to the jury, pursuant to the provisions of section 1187 of the Code of Civil Procedure, the appeal must be determined in accordance with the practice prescribed by that section, which does not contemplate a motion for a new trial or a consideration of the weight of evidence by the trial judge. The motion to set aside the verdict and for a new trial, therefore, which the order shows was entertained on the minutes of the .court and granted to the extent of setting aside the verdict but without awarding a new trial, must be disregarded and treated as a nullity, for the court is not, on a motion for a new trial, authorized to dismiss the. complaint.

In accordance with the practice under section 1187 of the Code established by the opinion of this court in Sullivan v. Metropolitan Street R. Co. (37 App. Div. 491), the case contains the exceptions taken by the respondent as well as those taken by the-appellant, and it becomes our duty to determine whether the verdict should be reinstated, or a -new trial should be awarded.

If no error was committed upon the trial or in the submission of "the case to the prejudice of the defendant, and if the verdict is not. against the weight of evidence or excessive, judgment should be directed thereon in favor of the plaintiff, inasmuch as we have reached the conclusion that the case should have been submitted to the jury.

The defendant called Dr. Moorhead as a witness. He testified that he happened to be passing at the time of the accident, and that he rendered first aid to the plaintiff in stopping the flow of blood prior to the arrival of the ambulance; that he hada dispensary appointment to the hospital to which plaintiff was taken, but that he did not attend plaintiff as a physician or have anything to do with his treatment other than as stated ; that he was a surgeon in the employ of defendant and ten days after the accident he called at the hospital, to see the plaintiff, whom he had not seen in the meantime, in the interest of defendant; that he asked plaintiff if he remembered seeing him at the drug store, to which the plaintiff replied in the negative; that he did not think plaintiff knew he was a physician, and he did not tell plaintiff he attended him at the drug store until after plaintiff made the statement to him concerning the accident, which was excluded by the court; that he did not talk with plaintiff about his present condition or about treating him as a physician, but solely as to the manner in which the accident occurred.

Under plaintiff’s objection the court excluded the evidence as to what the boy said to the doctor on that subject, and to this ruling defendant’s counsel duly excepted.

I think this evidence was competent. It appeared presumptively that the boy did not remember the witness or know- that he was a physician, and it is clearly shown that the doctor was not treating plaintiff, and that the information was not obtained for the purpose of aiding in his treatment. The statement was, therefore, voluntarily made the same as if made to an attendant, nurse or other •employee of the hospital, or to a visitor, and it did not come within the provisions of section 834 of the Code of Civil Procedure, which prohibits a physician from disclosing information acquired in attending a patient professionally, and which was necessary to enable him to act in that capacity.

This error precludes the reinstatement of the verdict and requires that a new trial be granted, with costs to the appellant to abide the event.

Van Brunt, P. J., concurred.

Nonsuit set aside and judgment directed upon the verdict, with costs.  