
    (4 Misc. Rep. 401.)
    BUTLER v. MANHATTAN RY. CO.
    (Superior Court of New York City, General Term.
    July 3, 1893.)
    1. Evidence—Res Gestas—Remarks op Employe.
    In an action for injuries to plaintiff’s wife, who, while entering defendant’s car, was struck by a gate which the brakeman was closing, it is admissible, as a part of the res gestae, to show what the brakeman said in response to the woman’s exclamation of pain.
    2. Action by Husband eor Injuries to Wipe—Damages.
    In an action for injuries to plaintiff’s wife, resulting in a miscarriage, plaintiff is entitled to recover for the loss of the child.
    Appeal from jury term.
    Action by Thomas Butler against the Manhattan Railway Company for loss of the services of his wife, resulting from the alleged negligence of defendant. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.
    Affirmed.
    For report of action by Mrs. Butler for personal injuries caused by the same alleged negligence, see 23 N. Y. Supp. 163.
    Argued before FREEDMAN and GILDERSLEEVE, JJ.
    Davies & Rapallo, (Joseph H. Adams, of counsel,) for appellant.
    Lamb & Osborne, (Gilbert D. Lamb, of counsel,) for respondent.
   GILDERSLEEVE, J.

The plaintiff’s wife sustained personal injuries through the alleged negligence of the defendant. This action is brought by the husband for loss of services. While Mrs. Butler, the plaintiff’s wife, was boarding one of defendant’s trains, she was struck on the side by the gate which the train guard was closing. The evidence fully justified the jury in finding a verdict for the plaintiff. The defendant does not deny that Mrs. Butler was struck by the gate, but the violence of the blow, and its alleged effects, are earnestly contested. The questions of fact thus raised were properly submitted to the jury, who found for the plaintiff, and assessed the damages at the sum of $2,250. The jury were warranted in giving credit to the testimony offered by the plaintiff, and evidently did credit it Therefore, the damages awarded cannot be said to be excessive.

Under' well-settled rules of law it is manifest that the appeal must fail unless at least one of the assignments of error in the admission or exclusion of evidence by the learned trial judge, or in his instructions to the jury, calls for a reversal.

The first alleged error, to which the learned counsel for the appellant invites our attention, arose upon the plaintiff’s wife being allowed to state what the brakeman said, at the moment of the accident, as follows:

“Question. What did the brakeman. say upon your exclamation at the moment of the blow? (Defendant’s counsel objected to the question as incompetent, immaterial, and hearsay. The court admitted the question, and counsel for defendant duly excepted.) Q. by the Court: After you said ‘Oh!’ what did the brakeman say? (Same objection, ruling, and exception were made.) Answer. He said I can go to hell.”

The character and quality of the acts of the brakeman at the time the gate struck Mrs. Butler were at issue. It was upon his acts at this time that the plaintiff rested the alleged negligence of the defendant. Mrs. Butler’s exclamation, “Oh!” was an outcry of pain, and the brakeman’s remark, “Go to hell,” an immediate response thereto. It was uttered at the instant Mrs. Butler received the blow, and tended to characterize the act done, and explain its quality. It was contemporary with the main fact under consideration, and material and competent as a part of the res gestae. 1 Greenl. Ev. § 108. The act of the brakeman in closing the gate, and the declaration in question, constituted substantially one transaction. The testimony is clearly within the rule as to res gestae declarations laid down by Eolger, J., in Tilson v. Terwilliger, 56 N. Y. 273:

“To be a part of the res gestae, they must be made at the time of the act done, which they are supposed to characterize. They must be calculated to unfold the nature and quality of the acts which they are intended to explain. They must so harmonize with those facts as to form one transaction. There must be a transaction of which they are considered a part. They must be concomitant with the principal act, and so connected with it as to be regarded as the result and consequence of coexisting motives.”

The case of Sherman v. Railroad Co., 106 N. Y. 542, 13 N. E. Rep. 616, cited by the learned counsel for the appellant, is not in conflict with this rule. In speaking of the testimony objected to in that case the court states, (Beckham, J., writing the opinion:)

“It was no part of the res gestae, but was calling simply for a narrative of the cause of a past occurrence.”

A careful examination of the other authorities cited in appellant’s brief, in our opinion, fails to sustain the appellant’s contention on this point.

Under the appellant’s second point it is urged that:

“The learned trial judge erred in excluding the testimony of Dr. Bird and Dr. Burrage as to what the plaintiff’s wife told them of her physical history when they treated her at the Women’s Hospital, inasmuch as by testifying to these facts herself she waived her privilege of excluding the physicians' testimony.”

The testimony sought called for communications between patient and physician, and was properly excluded, under sections 834 and 836 of the Code of Civil Procedure, unless the provisions were waived by the witness. It is claimed that she opened the door to the admission of this testimony by undertaking to tell what had transpired between her and the physicians. This was what took place: Under cross-examination the fact was elicited from the witness that she recognized Dr. Bird and Dr. Burrage as physicians who had treated her at the Women’s Hospital. By this cross-examinatian the defendant did not obtain from the witness a waiver of her privilege, nor open the door to the line of inquiry desired by the defendant. Upon inquiry of plaintiff’s counsel, on the direct examination, as to statements made at the Women’s Hospital, the witness said:

“They gave me two doses of medicine for my nervousness, and I do not know what statement I made after that. He came (this Dr. Burrage) to take statements, and I don’t recollect what I said.”

From this it cannot be said that the witness opened the door of the consultation room to the jury, and undertook to give them a statement of what had occurred between herself and the physician. For these reasons, and for the reasons set forth by the general term of this court, in the opinion of Judge McAdam, in the case of Butler against the defendant herein, (Super. N. Y.) 23 N. Y. Supp. 163, to recover damages for personal injuries arising from the same acts of negligence as those upon which this action is based, where a similar question was presented and decided, we are of opinion that the testimony under consideration was properly excluded.

Under appellant’s third point it is claimed that the learned trial judge erred in instructing the jury that they could award the plaintiff damages for the inability of his wife to .bear children. The evidence establishes the fact of Mrs. Butler’s pregnancy at the time she received the injury, and a miscarriage resulting therefrom. On the question of damages the learned trial judge said to the jury that the plaintiff has a right to recover “for damages arising from the injury, and resulting in depriving the plaintiff of prospective offspring.” This instruction was proper, and the evidence warranted an award for damages based upon the loss of prospective offspring. FFo claim was made for damages on account of the inability to bear children, except as to the child of which Mrs. Butler was pregnant at the time of the injury. A careful examination of all the rulings of the learned court below, bearing upon this point, satisfies us that no error was committed on this branch of the case, prejudicial to the defendant. The charge, taken as a whole, correctly presented the issues to the jury, laid before them the proper rule as to damages, and fully protected the rights of the defendant. We find no error in the admission or exclusion of evidence that calls for a reversal. The judgment and order appealed from must bpaffirmed, with costs.  