
    Harry W. Link, by Guardian, Resp’t, v. Jay W. Sheldon et al., App’lts.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed May 13, 1892.)
    
    1. Physicians—Malpbactice—Evidence.
    In an action against physicians for malpractice in setting a limb, evidence of exclamations of the patient while defendants had charge of him and concerning which they were informed when they called to see him is admissible.
    2. Same—Irresponsive answer.
    A witness was asked to state the proper treatment of Colles’ fracture, and replied that there might be halt a dozen different treatments of such fracture, and if counsel would designate which method he would have the witness would tell him the treatment Held, that the answer was irresponsive and was properly stricken out.
    3. Same.
    On Monday night defendants were prevented or postponed the re-dressing of plaintiff’s arm, and were discharged the next morning and another physician employed. On the trial an expert who had no personal knowledge of the case was asked whether he would trace any of the results testified to by the physician so employed to the lack of re-dressing on Monday night. Held, incompetent, as it called upon the witness to pass upon all the evidence in relation to the condition of the arm at that time and its prior treatment.
    4. Same.
    In such case a question as to how such a fracture usually occurs in young people is immaterial.
    5. Same—Ip,relevant issues.
    The fact that defendant testifies that he has treated numerous similar cases does not authorize an inquiry as to the results in such cases. If such inquiry was authorized, the question could be gone into on the other side, and thus irrelevant issues would be raised.
    6. Witness—Authorities.
    A question put to an expert witness as to whether the view expressed by him is sustained by the authorites is improper.
    Appeal from a judgment entered in Onondaga county on the 9th March, 1891, upon a verdict in favor of the plaintiff at the Onondaga circuit; also from an order denying a motion on the minutes for a new trial.
    Action for malpractice. On the '25th July, 1890, the plaintiff, then being about twelve years old, was playing in the hay loft of a barn and fell to the barn floor, a distance of about eleven feet, thereby breaking his right arm near the wrist. The defendants were called in to attend to it The claim of the plaintiff is that the defendants so negligently, unskilfully and improperly attended to the matter that plaintiff’s hand became permanently injured and deformed.
    
      F. K. Fuller, for app’lts; Goodelle & Nottingham, for resp’k
   Merwust, J.

this case, upon the evidence, it was clearly a question of fact whether the plaintiff had sustained an injury by reason of the want of proper skill or care on the part of defendants, within the rule applicable to such cases, Carpenter v. Blake, 10 Hun, 358, as was also the question whether the negligence or misconduct of the plaintiff or his parents contributed to the result. The motion for a nonsuit was therefore properly denied. We have examined the cases cited by the counsel for defendants upon this subject but find nothing that would call for a different conclusion.

It is claimed by the defendants that numerous errors, to their disadvantage, were made by the court in rulings upon evidence and in regard to requests to charge. These we will examine in detail.

1. The accident was in the forenoon of Friday and the defendants set the limb the same forenoon. The father of the plaintiff, being upon the stand as a witness for the plaintiff, testified without objection, among other things, that on Friday night the plaintiff “ was crying terribly, he said his hand pained him so he could not live through it, pained him same as if he had it on a hot stovethat upon the following day he saw one of the defendants and told him what pain the boy had been suffering; that upon the following night the boy “complained of a burning sensation, he did nothing but walk, he could not keep quiet, he walked around the house.” The question was then asked, “Did he continue those complaints ?” and the answer given : “Just the same, this burning, terrible burning pains. ” The counsel for defendants then said, “ I object to that class of evidence as incompetent, improper and inadmissible,” and- to this the court replied, “I think the exclamations of the boy are competent in this class of cases.” The objection was overruled and exception taken.

This evidence related to the condition of the boy while the defendants had charge of him and concerning which 'they were informed when they called to see him. The court evidently followed the rule laid down in Hagenlocher v. The C. I. & B. R. R. Co., 99 N. Y., 136, where it was held that exclamations indicative of pain were competent, and proof of these was not confined to the time of the injury. Roche v. Brooklyn City & N. R. R. Co., 105 N. Y., 297; 7 St. Rep., 361. Ho error is apparent 'The counsel for defendants specifies two other questions upon this subject, the objections to which were overruled, but as they were not answered it is not important to consider them.

2. A witness for the defendants was asked by the defendants’ counsel the following question:-“Q. I would like to have you take the matter up and state to the court and jury what is the proper treatment of Oolles’ fracture, including the subject of splints? ” To this the witness made answer: “ There may be half dozen different treatments of Colles’ fracture with the dislocation backwards; there are half dozen theories and methods of practice with reference to this fracture; some men have one method of treating; some have another, and some another. If you will designate which method you will have, I will tell you what treatment you want. There are a great many methods.” The counsel for plaintiff moved to strike out this answer, and the court replied : “ We desire his idea of the proper treatment of Colles’ fracture. I think I will strike the answer hut That this is a difficult fracture to deal with it may be assumed.” Defendants excepted.

The answer was not responsive to the question. Besides, the substance of the answer as given was afterwards fully stated by the witness.

3. Dr. Lee, an expert witness for defendants, was asked by defendants’counsel the following question: “Q. Would you trace any of the results which you have heard testified to by Dr. Doyle to the lack of re-dressing on Monday night ?”

This was objected to .as incompetent and immaterial, and objection sustained and exception taken.

Upon the Monday night following the accident, the defendants called at the house where the plaintiff was for the purpose of redressing the arm. It was a disputed question whether the defendants were prevented from then re-dressing the arm by the parents of the boy, or whether they voluntarily postponed it to the next day. Upon the morning of the next day the defendants were discharged, and Dr. Doyle then re-dressed the arm and thereafter took charge of the case. He in his evidence had given a description of the injury as he found it on Tuesday, and of the subsequent treatment and results up to the time of the trial.

The witness, Dr. Lee, had no personal knowledge of the case. He had, in answer to a hypothetical question, testified that the delay in the re-dressing from Friday evening to Tuesday forenoon was highly damaging to the boy. The question above set out was then asked. It not only called upon the witness to consider the evidence of Dr. Doyle as to the results referred to but also the evidence of other witnesses, which the witness had heard, as to the condition of the arm on Monday evening and its prior treatment. In no other way could the witness judge of the effect of the lack of re-dressing on Monday night. The witness was, therefore, in effect asked to pass upon all the evidence upon that phase of the case. In this view, the question was incompetent within the principle laid down in People v. McElvaine, 121 N. Y., 250; 30 St. Rep., 977, and cases there cited.

4. The counsel for defendants asked the witness, Dr. Lee, the following question: “ Q. How does it (referring to an ordinary Colies' fracture) occur in young people usually ?” This, being objected to, was ruled out, and properly so. The issue was not as to how such fractures usually occurred with young people, but whether the boy fell upon the palm of his hand, thereby producing the ordinary Colles’ fracture, or whether he fell upon the back of his hand, thereby producing a different kind of fracture or displacement.

5. Dr. Eisner, an expert witness for the defendants, after having given his opinion as to the proper treatment of a swelling-in the palm of the hand, was asked the question: “Is this view you have just expressed sustained amply by the authorities ?’? This being objected to was ruled out. The question indirectly called for statements from .medical books and was not proper. See Matter of Mason, 60 Hun, 57; 38 St Rep., 533, and cases cited. This was upon the direct examination of the witness.

6. Dr. Eisner was also asked the question: Do you trace the injury which now exists in that hand to tight bandaging ? This being objected to as incompetent and immaterial was ruled out The question in substance was repeated, but with an hypothetical basis and was answered. This gave to the defendants all they were entitled to have.

7. The defendant Sheldon, when called in his own behalf, testified that in his practice he had treated twenty-five or thirty cases of Colles’ fracture. He was then asked the question: “And with what results?”- This was objected to by plaintiff’s counsel as incompetent and immaterial, and objection sustained. If the results in each case that witness had treated could be gone into upon the one side, they could be upon the other and thus irrelevant issues be raised. Upon the question of general reputation as to skill, specific acts would not be competent Carpenter v. Blake, 10 Hun, 360.

In the case cited Judge Talcott says: “ The defendant cannot be supposed to be prepared to prove the facts in regard to all cases which had theretofore occurred in his practice, and the inevitable effect of allowing such evidence would be to introduce before the. jury a multitude of collateral issues, and thus tend to obscure and distract attention from the real issue in the case on trial.” It may be, as said by Judge Mullin, in Carpenter v. Blake, 60 Barb., 518, that the fact that a physician or surgeon possesses skill may be shown by those of the same profession who can Speak from personal knowledge of his practice. This, however, would not authorize either party to inject into the case an issue as to some prior transaction, as to whether the results there were good or otherwise, or as to whether the results, whatever they may have been, were due to skill or lack of skill.

8. The court was requested by the defendants' counsel to charge that “if the jury find the stiffness of the thumb resulted from its changed position from which the defendants left it, then the defendants are not liable.” To this request the plaintiff’s counsel suggested: “ That is a question of fact.” The court then said: “ Yes, I think that is a question of fact for the jury.” Defendants excepted. What the changed position was, that was referred to, was left indefinite. If by reason of defendants’ negligence a change of position was necessary, it could not be said as matter of law that defendants were not liable. The stiffness of the thumb was not the only injury complained of. The court afterwards charged, at the request of defendants, that if the jury found upon the evidence that any part of the injuries complained of were caused by the acts or neglect of the plaintiff or his parents, or by those who treated the plaintiff after the defendants ceased to do so, there could be no recovery. In view of this, the defendants’ counsel cannot complain of the action of the court upon the previous request.

9. The defendants’ counsel requested the court to charge that, “if the jury find from the evidence that the results complained of were not wholly caused by what the defendants did, or failed to do, the plaintiff cannot recover.” To this the court replied: “ That I think I will not charge, because the original injury may have had something to do with the matter. If the original injury has been complicated, made worse by the want of skill and care of the» defendants, they are responsible for just as much additional fault as resulted from that want of care and skill.” To this the defendants excepted. Thereupon the court, at the request of defendants, charged that, “ if the jury should find from the evidence that any part of the injuries complained of were caused by the defendants, and a part was also caused by the fault of the plaintiff or his parents, or of others who treated the case after the defendants left it, then the plaintiff cannot recover.” Taking these requests together, and the action of the court thereon, the defendants have no ground for complaint. See Carpenter v. Blake, 75 N. Y., 12, 24.

10. The defendants’ counsel requested the court to charge that, “if the jury find from the evidence that the contusion or injury on the back of the hand produced an inflammation in the sheaths of the tendons which spread to the adjacent parts, and that such contusion was an adequate cause for the inflammation, suppuration and stiffening which followed as a result thereof, and which do not develop at the surface for a period of from three to six days, then the injuries complained of are the natural results of the plaintiff’s fall and misfortune, and the defendants are not liable.” This the court declined to do, saying that it was a question of fact on the evidence. Thereupon, at the request of defendants, the court charged that, “ if the jury find from the evidence that it is just as probable that the injury complained of was caused either by the original severe injury, or by the interference of the plaintiff’s parents, or -by the subsequent manipulations and treatment of Dr. Doyle and others, as from the pretended tight bandaging, it is the duty of the jury to find a verdict for the defendants.” Taking these requests together, and the action of the court thereon, the defendants have no good ground for complaint.

11. The defendants’ counsel asked the court to charge that, “ if the jury find from the evidence that the position and stiffness of the thumb was caused by the abscess spoken of by Dr. Doyle in the palm of the hand, which was not opened by him, but allowed to gather and break, and destroy the muscles and tissues in that vicinity, the defendants are not liable therefor,” also that “ if, etc., the thumb was drawn down by an abscess as spoken of by Dr. Doyle, and was not opened, and the pus let out, but allowed to go on, then these defendants are not liable therefor, and the plaintiff cannot recover." These requests the court declined to charge, and defendants excepted. These requests assumed that the treatment by Dr. Doyle was not proper. That was a quéstion of fact upon the evidence. Besides the court had previously charged at the request of the defendants that, “if the jury find from the evidence that any part of the injuries to plaintiff’s hand and wrist were caused by the manipulations of Dr. Doyle, and the subsequent treatment of the same, the defendants are not liable, and the plaintiff cannot recover in this case; and their verdict should be for the defendants.” •

The charge as a whole was fully as favorable to the defendants as they had a right to ask. The principles needed by the j ury to the proper determination of the issues of fact were cletfrly and distinctly stated. The rights of the defendants, both on the taking of the evidence and in the laying down of the law applicable thereto, were fully protected. The case was exhaustively tried, and we find no error that would make it proper for us to grant a new trial.

The only other question presented relates to the amount of damages. It is claimed that the verdict was excessive. No special considerations are urged in support of this proposition. In the view that' the jury had a right to take of the case, not only was present injury and suffering to a large extent attributable to the acts or omissions of the defendants, but also a serious permanent injury. No sufficient ground is apparent for us to interfere.

Judgment and order affirmed, with costs.

Hardin, P. J., and Martin, J., concur.  