
    (73 Hun, 560.)
    MORRIS v. NEW YORK, O. & W. RY. CO.
    (Supreme Court, General Term, Second Department.
    December 1, 1893.)
    1. Carriers—Injuries to Passengers—Evidence—Review on Appeal.
    On an issue as to whether plaintiff, who was injured by jumping from one of defendant’s trains to avoid a collision, was a regular passenger or was traveling on a pass, it appeared that she did not purchase a ticket before boarding the car; that she had money with her; that she did not have defendant’s regular printed form of pass; that when the conductor came to her she “referred” him to her brother, a brakeman on the same train; and that the conductor did not come back to her for a ticket, "field, that a finding by the jury that she was a passenger would not be disturbed on appeal.
    
      2. Damages—Excessive Allowance—Personal Injuries.
    Where, in an action for personal injuries, caused by jumping from a train to avoid a collision, there is evidence of a permanent injury to the spine, that plaintiff was growing worse, and that before the accident she was a rugged, healthy woman, a verdict for $3,500 will not be disturbed as excessive.
    3. Witness—Privileged Communications.
    Testimony as to what a physician called in consultation said of the nature of the disease to the attending physician in the presence of the patient is inadmissible against the patient.
    Appeal from circuit court, Orange county.
    Action by Mary A. Morris against the New York, Ontario & Western Railway Company for personal injuries caused by jumping from one of defendant’s trains to avoid a collision. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ.
    William Vanamee, for appellant.
    W. F. O’Neill, for respondent.
   BARNARD, P. J.

There is no uncertainty in the proof as to' the defendant’s negligence causing the accident which injured the plaintiff, nor is there any doubt as to the fact that the plaintiff is free from all negligence which contributed to her injury. She was a passenger on the defendant’s train, and saw an approaching engine of the defendant’s coming upon the same track. She jumped from the car just before the crash of the collision, and was hurt in her fall. The extent of the injury is disputed. The plaintiff states that she is 33 years of age; that before the accident she was a healthy, rugged woman, the mother of two children, one born after the accident. The injury was received the 16th of November, 1891, and up to the trial, in June, 1893, she had been unable to do any work. In this statement of her injury the plaintiff is supported by her husband. Proof was given tending to show a permanent injury of the spine, caused by the concussion from her fall, and that she was growing worse. There was proof given by the defendant tending to show that the plaintiff, at and soon after the accident, said she was not hurt, and, by those who saw her get off from the cars, that she did not fall, but landed upon her feet, and ran across to a store. Proof was also given by the defendant tending to show that the plaintiff was not in good health before the accident.

The defendant sought to prove that the plaintiff was riding on a pass. Her brother was a brakeman on the train upon which plaintiff was traveling. She had no pass; had money to pay her fare, but no one asked her for it. She says that there was no arrangement whatever that she was to travel on a pass. She purchased no ticket, and referred the conductor to her brother George, (the brakeman,) and, when she attempted to testify as to what her brother said about it on the day before, she was stopped". This proof is not sufficient to reverse a verdict of the jury based apon the fact that she had no pass, and was a regular passenger.

The testimony of Dr. De Kay was properly rejected. He was called in professionally, as consulting physician. What either said in consultation in the presence of the plaintiff is inadmissible. Renihan v. Dennin, 103 N. Y. 573, 9 N. E. 320. They did not agree upon the disease, and this fact will not permit the confidential relation between physician and patient to be rendered nugatory. The defendant asked the regular physician, Payne, if Dr. De Kay did not say the plaintiff’s injury was intercostal neuralgia, and he said he did. No case for what is known as “impeaching evidence” is made. The damages, $3,500, are not excessive, if the jury believed the testimony of the plaintiff and her husband.

The judgment and order denying a new trial should be affirmed, with costs.

DYKMAN, J., concurs.

PRATT, J.,

(concurring.) Defendants concede their negligence, and do not claim that plaintiff was guilty of contributory negligence. The questions of fact were whether the plaintiff took passage intending to pay her fare, and whether she was injured, and to what extent. These were sharply disputed, and the contention of each side was sustained by an abundance of witnesses. The case is pre-eminently one to be decided by the jury. There is no such preponderance of evidence as to call for the interference of the court. There is no question of law that requires discussion. Judgment affirmed, with costs.  