
    Benjamin De Jong, Respondent, v. Erie Railroad Company, Appellant.
    
      Physician and patient —section 834 of the Code of Oivil Procedure does not extend to admissions of the patient not related to the professional conduct of the physician.
    
    The prohibition in section 834 of the Code of Civil Procedure relating to communications between physicians and patients extends only to such communications as are "necessary to énabld thé physióian to act in his professional capacity, and does not extend to admissions, made by the patient, of facts which have no possible relation to the professional conduct of the physician.
    In an action brought against a railroad company to recover damages for injuries sustained by the plaintiff while crossing its tracks, a surgeon in the employ of the railroad company who attended the plaintiff, with his consent, may testify that during his first visit to the plaintiff the latter informed him that he did not . observe the' train until he was'slruck.
    
      Appeal by the defendant, the Erie Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rockland on the 5th day of December, 1898, upon the verdict of a jury for $300, and also from an order entered in said clerk’s office on the 23d day of December, 1898, denying the defendant’s motion for a new trial made upon the minutes.
    
      Henry Bacon, for the appellant.
    
      Arthur S. Tompkins, for the respondent.
   J.:

. This judgment will have to be reversed on account of an error in the exclusion of .evidence. The plaintiff was in jured while attempting to drive his horse-and wagon across-the railroad of the defendant near Sparkill, in Rockland’ county.- Within an hour or two after the accident Dr: William C. McKeebee,'a surgeon in the employment of the Erie Railroad Company, called upon the plaintiff and began to treat him for his injuries. This treatment was continued for about four, weeks, with the consent of the plaintiff, notwithstanding that he was informed by Dr. McKeebee that he was entitled to his own physician. During the period of his attendance. the doctor conversed with the plaintiff in regard to the circumstances of the accident, and also obtained his signature to a written state-, ment concerning the manner in which the collision occurred."

Upon the trial Dr. McKeebee was called as a witness in behalf of the defendant and was asked the following question: “ Did the plaintiff state to you on the day when you first called on him that he did not observe the train until he was struck ? ”

This question was objected to by the counsel for the jffaintiff on the ground that it was immaterial, irrelevant and incompetent, and especially, incompetent under section 834 of the Code of Civil Procedure, being a privileged communication between physician and patient,-and having been made by the patient while being treated by the witness, The objection -was sustained and defendant's counsel excepted. '

■ This exception'was well taken. The disclosures prohibited;-by the statute are only such as were necessary to enable the medical -Iban ' to act as physician or surgeon. The prohibition does not extend to admissions, made by a party to an action, of facts which have and can have no possible relation to the professional conduct of the medical or surgical practitioner. Nothing that the plaintiff could say in regard to his observation of the train ''which struck him, or his failure to observe it, could, by any possibility, have been either material or useful to Dr. McKeebee in his treatment of the plaintiff as a patient. Whatever statement the plaintiff made on that subject was wholly outside the.case in its medical or. surgical aspects. The question to which the objection was sustained was plainly designed to show that immediately after the accident the plaintiff had declared that he did not see the train until it actually struck him, whereas upon the trial the plaintiff had testified to a different state of facts. There were three tracks at the highway crossing, and he swore that when he was on the first track he saw the train coming on the third track. The admission thus sought to be proved bore directly, not only upon the plaintiff’s credibility, but upon his contributory negligence, and it cannot be held that the exclusion of the evidence may not have influenced the result of the trial.

If it be necessary to cite authority for these conclusions one case will suffice. (Brown v. Rome, W. & O. R. R. Co., 45 Hun, 439.)

In the written statement concerning the accident, which the doctor procured the plaintiff to sign about a week afterward, is a declaration that the plaintiff did not notice the approach of the train or know that he had been struck by the tráün until informed of the fact by others.; and upon the oral argument it was suggested in behalf of the respondent that, even if an error had been committed in the ruling .which has been considered, it was harmless, inasmuch as the defendant had practically obtained in the written statement the admission or admissions which it sought to prove by Dr.'McKee-bee on the trial. There would be force in this argument if the plaintiff had distinctly acknowledged that he signed the written statement fully understanding its contents. He did nothing of the kind, however. He refused to admit that the written statement -was true as lie understood it when made; lie declared that the persons connected with the Erie Railroad Company made people sign what they didmot know; and he further testified that the doctor told him it was just a matter of form to sign the paper ; that, he did not read it himself, and that he did not remember what the doctor read to him. JThe testimony of the plaintiff on this subject may" well have conveyed the idea to the jury that he did .not knowingly make the admissions contained in the written statement. For these reasons it was all the more important to the defendant to be allowed to prove by the testimony of "the doctor exactly what admissions the plaintiff actually made., •

The judgment and order should be reversed ánd a new trial granted, costs to abide the event:

All concurred.

Judgment and order reversed and new trial granted, costs, to abide the event.  