
    Francis Pierpoint, an Infant, by Jesse Pierpoint, His Guardian ad Litem, Respondent, v. Fifth Avenue Coach Company, Appellant.
    Second Department,
    May 17, 1912.
    Evidence — personal injuries — physical condition of plaintiff before accident — hypothetical question.
    A plaintiff suing to recover for personal inj uries should he allowed to testify that prior to the accident he never had pains in his heart, shortness of hreath, or similar conditions from which he suffered after the accident. Such testimony does not state the mere conclusion of the witness.
    A hypothetical question to the plaintiff’s physician is not improper because the plaintiff’s counsel did not include therein the fact that a physician’s examination of the plaintiff after the accident showed that he then had an enlarged heart.
    Appeal by the defendant, the Fifth Avenue Coach Company, • from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 28th day of March, 1911, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 5th day of April, 1911, denying the defendant’s motion for a new trial made upon the minutes.
    
      Theodore H. Lord [Arthur K. Wing with him on the brief], for the appellant.
    
      George F. Hickey [M. P. O’Connor with him on the brief], for the respondent.
   Rich, J.:

This appeal is from a judgment in favor of the plaintiff in . an action to recover damages for personal injuries alleged to have been sus tamed through defendant’s negligence, and from an order denying a motion for a new trial made on the minutes. The injuries were in consequence of plaintiff being run into by a seven-ton motor omnibus owned and operated by the defendant. Upon the trial it was established that the plaintiff was then suffering from chronic heart disease, and the sole question litigated was whether or not such affection of the heart was due to and the result of the accident. The main contention of the appellant is that the court erred in permitting the plaintiff to testify, over its objection, that prior to the accident he had never had pains in his heart, shortness of breath or similar conditions which he suffered from after the accident, and it is argued that such questions called for the mere conclusion of the witness. I think not. They are facts, as to the presence of which the plaintiff ivas competent to testify. Counsel for defendant concedes that it is competent for a witness to testify as to whether he had a headache, toothache or backache. There can be no distinction, as to the competency of the evidence, between pains in different parts of the body. A person is as competent to testify to the fact that he had a pain in his heart as that he had a pain in his head. If, as argued, the ordinary witness cannot locate the position of his heart, or tell whether the pain was in his heart or in his stomach, the defendant could by cross-examination have learned whether the. witness possessed such knowledge, and if he did not, his evidence in that respect would have been of little value.

It is contended also that counsel for the plaintiff did not include in his hypothetical questions to his expert medical witnesses the fact-that a physician’s examination of plaintiff, two hours after the accident, disclosed that he then had an enlarged heart. Such omission did not render the hypothetical questions incompetent or improper. (Cole v. Fall Brook Coal Co., 159 N. Y. 59.)

The verdict is supported by the evidence, and the judgment and order must be affirmed, with costs.

Present — Jenks, P. J., Thomas, Carr, Woodward and Rich, JJ.

Judgment and order unanimously affirmed, with costs.  