
    Harriet L. Fox, Respondent, v. The Union Turnpike Company, Appellant.
    
      Turnpike—ea/re required in its maintenance—an ungua/rded approach to a bridge —proof that no previous accident had occurred—a verdict for $1,400 held not to be excessive — waiver of the prohibition against a physician’s testimony.
    
    A turnpike road is a public highway, and the same duty rests upon a turnpike company to keep its roads and bridges reasonably safe for ordinary travel that rests upon municipalities with reference to roads and bridges owned and maintained by them. The absence of a guard or railing where one is needed to make a .highway reasonably safe is a defect.
    
      Where the approach to a bridge on a much traveled turnpike consists of a fill between retaining walls, eighty-eight and nine-tenths feet long, twenty-five feet wide at the commencement and eighteen feet wide at the bridge, at which, point it is over ten feet above the adjoining lands, the question whether the failure to maintain guards or railings on the approach is such a defect as will constitute negligence on the part of the turnpike company and. render it liable for personal injuries sustained by a woman while riding up the approach, between nine and ten o’clock on a starlight night, in a wagon drawn by a gentle horse, driven by her son-in-law, who was acquainted with the horse and accustomed to driving, in consequence of the horse shying for some undisclosed reason and plunging over the side of the approach, is a question for the jury as-is also the question of the injured party’s contributory negligence.
    In an action against the turnpike company to recover damages for such injuries, evidence that no previous accident had occurred on the approach to the bridge is proper for the jury to consider in determining whether it was a dangerous place, and whether the accident was one that could have been reasonably anticipated, but such evidence does not of itself establish a defense to the action.
    A verdict of §1,400 in favor of the plaintiff is not excessive where the evidence-tends to show that the plaintiff, when the accident happened, was fifty-one years of age, that her weight had decreased from 192 pounds to 128 pounds, that she had suffered since the accident continuous pain and had frequent-dizzy, fainting and sinking spells, during some of which she was unconscious and had had a number of hemorrhages, that she was unable to attend to her domestic duties and had been obliged to abandon her dressmaking business ■from which she had previously earned an average of one dollar a day, and that-such results were the natural consequence of her injuries and that she would not recover from them.
    The fact that the plaintiff, on her examination on her own behalf, stated that the¡ physician who attended her the day after the accident gave her internal remedies which she used, although she did not attempt to repeat any conversations with such physician or detail what, if anything, was done by him, and on her cross-examination testified as follows: “ Q. What did the doctor do for you-then? A. He examined my back and examined me. He ordered alcohol. Q. What did he give you? A. He gave me some medicine, that is all I can tell you; something in a glass, two or three different kinds,” does not establish a. waiver by the plaintiff of the prohibition contained in section 834 of the Code-of Civil Procedure and entitle the physician to testify on behalf of the defendant as to what he did or learned during the examination.
    The determination of the question of a waiver of the prohibition contained in section 834 of the Code of Civil Procedure depends very largely upon the extent to which the patient enters into the details of ' the consultations with the-physician.
    Appeal by the defendant, The Union Turnpike Company,' from, a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 20th day of December, 1899, upon the verdict of a jury for $1,400, and also from an order entered in said clerk’s office on the 8th day of January, 1900, denying the defendant’s motion for a new trial made "upon the minutes.
    
      John H. Gleason, for the appellant.
    
      Samuel T. Hull and J. Newton Fiero, for the respondent.
   Chase, J.:

The defendant is a domestic corporation and the owner of a turnpike road which includes the eastern approach to the Verplanck bridge in the town of Westerlo, Albany county. The bridge is a single span iron structure, and the eastern approach is a fill between bluestone retaining walls commencing at the level of the highway eighty-eight and nine-tenths feet from the bridge and extending to the bridge where it is. a little over ten feet above the adjoining lands. The approach is twenty-five feet wide at its commencement and eighteen and seven-tenths feet wide at the bridge, and at the time of the accident alleged in the complaint, and for more than one year prior thereto, it had no railings or guards.

On the 14th day of November, 1896, between seven and eight ■o’clock in the evening, the plaintiff and her son-in-law, Frank Reynolds, started from the plaintiff’s home in Ravena in an open wagon ■drawn by one horse to go to her daughter’s residence in the town of Westerlo. The horse was a gentle one, and Reynolds, who did the driving, was acquainted with the horse and accustomed to driving horses. The Verplanck bridge was on "the usually traveled road from Ravena to Westerlo. It was a starlight night, and between nine and ten o’clock, as Reynolds was carefully driving up the approach of the bridge, and when within about fifty-six feet of the bridge, the horse, for some reason not disclosed in the record, suddenly shied and went over the side of the approach into the adjoining field, carrying with him the wagon and its occupants. The plaintiff fell from the wagon upon the ground in the field and immediately became unconscious and remained in an unconscious condition until Reynolds had secured the horse and had gone to a farm house some 500 feet away and obtained help, after which the plaintiff was assisted to the farm house, and she there remained until the next day, when she was taken in a carriage to her home in Ravena. There is no evidence in the record contradicting in any substantial particular this evidence produced on the part of the plaintiff. The jury rendered a verdict in favor of the plaintiff for $1,400. The defendant insists that the facts proven do not justify a recovery against the defendant, and further insists that the plaintiff is feigning her injuries, and that the damages are excessive. The plaintiff is fifty-one years of age, and for two years prior to the accident had carried on a dressmaking business as a separate and independent business from that of her husband, and had earned an average of one dollar a day. The plaintiff testified that immediately following the accident she had severe pain through her back and between her shoulders, and that since that time she had continuous pain from her injuries. Prior to the accident she weighed 192 pounds, and at the time of the trial she weighed 128 pounds. She now has frequent dizzy, fainting and sinking spells, during some of which she is unconscious, and she has had a number of hemorrhages which, it is claimed, came from the injuries to her back, and she further testifies that she is unable to attend to her domestic duties, and that she. has been obliged to abandon entirely her dressmaking business. Testimony was .also received in her behalf tending to corroborate her statements, and expert testimony was received to the effect that the pain, sinking spells, hemorrhages and other manifestations were the natural result and consequence of the injuries, and that she will not recover from them. It is claimed on behalf of the defendant that the manifestations, so far as they can be seen by others, are attributable to the time of life of the plaintiff, and that any pain or apparent evidence of injury, except, such as are natural for the reasons stated, are entirely feigned, and testimony was received, including expert testimony, to substantiate the defendant’s contention. We are of the opinion that the negligence of the defendant, the lack of, contributory negligence on the part of the plaintiff, and the extent of the injuries were questions of fact fairly presented to the jury by the trial court. There is nothing in the record to justify a conclusion that the jury were actuated by prejudice, passion, or by any improper motive in finding a verdict for the plaintiff or in fixing the amount of the-damages. A turnpike road is a public highway, and the same duty rests upon a turnpike company to keep its roads and bridges reasonably safe for ordinary travel that rests upon municipalities with reference to roads and bridges owned and maintained by them. The absence of a guard or railing where one is needed to make a highway reasonably safe is a defect. The trial justice left the jury to determine whether the defendant was negligent in omitting to maintain guards or railings on the side of the approach to the bridge. At the close of the charge defendant’s counsel said: “ I except to that portion of the charge where you submit to the jury the question whéther the maintenance of this bridge was negligent, and I ask you to charge that the manner in which' it was maintained was not negligent.” The request was declined by the court.

The questions, the answers to which are controlling in this case so far as the right to a recovery is concerned, are: First. Was the approach to the bridge, without guards or railings thereon, a dangerous place for ordinary travel ? Second. Was the accident to the plaintiff one that should have been reasonably anticipated by the defendant, or was it one that would naturally have occurred to a prudent man as likely to happen ?

The trial court allowed the defendant to show that no accident had occurred on this approach to the bridge prior to the time mentioned in the complaint. This evidence was proper for the jury to consider in determining whether it was a dangerous place and whether the accident was one that should have been reasonably anticipated. The fact that no accident had previously occurred at this particular place is not in itself a defense. (Maxim, v. Town of Champion, 50 Hun, 88; S. C., 119 N. Y. 626; Wood v. Town of Gilboa, 76 Hun, 175; Wood v. Third Avenue R. R. Co., 91 id. 276 ; Quill v. Empire State Telephone Co., 13 Misc. Rep. 435 ; Cleveland v. New Jersey Steamboat Co., 125 N. Y. 299 ; Burns v. City of Yonkers, 83 Hun, 211; Ivory v. Town of Deerpark, 116 N. Y. 476.)

The turnpike was a prominent highway leading from the direction of the village of Ravena into; the interior of the county, and was much used, and we do not think that this court should say, as a matter of law, that the approach to the bridge was reasonably safe without guards or railings, or that the verdict is so entirely against the weight of evidence as to require a reversal of the judgment entered thereon.

One Powell, a physician and surgeon, was' called as a witness by the defendant, and after testifying on his direct examination that he was called to treat the plaintiff on the evening of the 15th of November, 1896, at Ravena, being the evening of the day following the accident, he stated that he made an examination of the plaintiff, and was then asked by the defendant: Q. Kindly describe the-examination you made in your own way.”

This question was objected to by the plaintiff as incompetent; that the witness cannot state what took place at the time he was called as a physician; that the facts that he obtained in prescribing for the plaintiff are inadmissible under section 834 of the Code of Civil Procedure. The court said: I think you are limited (on your claim that there was a waiver) to a denial of her testimony here • in court by the testimony of the physician.” To this the defendant excepted. This was followed by many questions, of which the following are samples : “ Q. Did you make a critical examination after having her undressed and parts exposed to view and touch; did you make a complete, critical and thorough examination of the parts that she complained of having; pain in ? ” “ Q. Did you make an examination of the heart and lungs and a complete and thorough investigation to discover the existence of organic disease ? ”

To these and similar questions the same objection was made as to-the previous question, and the same ruling was made by the court. The only evidence given by the plaintiff on her examination with reference to what was said and done by Dr. Powell when he was called to treat her other than a statement that he gave her internal remedies which she used, was brought out by the defendant on the cross-examination of the plaintiff, and is as follows : Q. What did the doctor do for you then ? A. He examined my back and examined me. He ordered alcohol. ■ Q. What did he give you ? A. He gave me some medicine, that is all I can tell you; something in a glass, two or thrée different kinds.”

The evidence sought to be obtained by the questions' objected to by the plaintiff is clearly within the prohibition contained in section 834 of the Code of Civil Procedure, and unless it was expressly waived by the plaintiff, as provided by section 836 of the Code of Civil Procedure, the rulings of the trial court, were right.

The plaintiff, while on the witness stand, detailed her alleged injuries, and stated without reserve her feelings and all the alleged consequences of the injuries ; but she did not attempt to give the conversations with Dr. Powell or detail what, if anything, was done by him. The questions to Dr. Powell were not, therefore, asked for the purpose of contradicting anything that the plaintiff testified she had said or done in his presence or to correct any statement made by the plaintiff as to what he had said or done in her presence. The defendant contends that where a plaintiff testifies generally regarding her injuries and the treatment of the same, it is an express waiver of the prohibition contained in section 834 of the Code of Civil Procedure, and that thereupon all physicians who have acquired information from her necessary to enable them to act in their professional capacity with reference to the injuries can be required to give in detail what they may have seen or heard in their confidential relations with the patient, notwithstanding the fact that the patient has purposely or otherwise refrained from giving any statement as to what occurred in the consultation room. When a patient voluntarily opens the door of the consultation room and gives a view that may have been specially arranged for the purpose, it would not be in accordance with the spirit of the statute or in the interest of truth to shut the door against a view to be described by the physician, but in this case the door to the consultation room has not been opened by the plaintiff. The prohibition contained in the statute against disclosing professional information is for the purpose of allowing greater freedom between physician and patient, and a patient should not be subject to the penalty of waiving entirely the prohibition contained in section 834 of the Code of Civil Procedure if she gives to a friend, or as a witness in an action or proceeding in court, a general statement of her injuries and the claimed consequences of the same. The plaintiff’s testimony was not an express waiver in this case. It bias been substantially held not to be an express waiver in the case of Hope v. Troy & Lansingburgh R. R. Co. (40 Hun, 438; affd., 110 N. Y. 643) and in Feeney v. Long Island R. R. Co. (116 id. 375).

In the case of Rauh v. Deutscher Verein (29 App. Div. 483) the plaintiff testified in regard to an alleged accident, and as to the operations that were performed upon her at the hospital and as to her treatment by the physicians before and after the operations, and" it was held in that case that her testimony constituted an express waiver of her right to object to the testimony of the physicians to whom she referred.. The decision in that case is in accordance with the views above expressed, and a careful examination of the opinions therein shows that it is not an authority as contended by the defendant in favor of holding that á general statement by a plaintiff as to her injuries is sufficient to constitute an express waiver under section 836 of the. Code of: Civil Procedure.

The case of Treanor v. Manhattan Railway Co. (28 Abb. N. C. 47), which is an authority in favor of defendant’s contention, has been disapproved by the Court of Appeals. In the case of Morris v. New York, Ontario & Western R. Co. (148 N. Y. 88), the Court, in referring to the Trecmor case, says : “ The one last cited «ertainly pushes the principle too far.” .

The determination of the question of an express waiver depends very largely upon the extent to which the patient in her testimony has entered into the details of the consultations with her physician.

We think, upon principle and authority, that the evidence of Dr. Powell was properly excluded.

Judgment and order unanimously affirmed, with costs.  