
    Joseph Kossoff, Respondent, v. Simon Kupferberg and Morris Hollinger, Appellants.
    (Supreme Court, Appellate Term, First Department,
    June, 1915.)
    Evidence — in action to recover for personal injuries — when incompetent — appeal.
    Where in an action to recover for personal injuries the testimony as to how they were caused is conflicting, the case should be sent to the jury.
    Where a physician as a witness for plaintiff, in answer to a question as to whether an X-ray blue print which he brought from the hospital to which plaintiff had been taken correctly showed the position at the time of the trial of the palm of plaintiff’s injured hand, replied that it explained the reason of the deformities he found, said blue print, in' the absence of testimony either that an X-ray picture was taken of plaintiff’s hand or that the blue print produced was a picture thereof, was incompetent and its reception in evidence calls for the reversal of a judgment in favor of plaintiff entered on a verdict for $1,500.
    Appeal by defendant from a judgment of the City Court of the city of New York, entered on a verdict in favor of plaintiff.
    
      Leonidas Dennis (William Dike Reed, of counsel), for appellants.
    Isidore Apfel (Moses Feltenstein, of counsel), for respondent.
   Guy, J.

The action is to recover damages for personal injuries alleged to have been sustained through the defendants’ negligence.

On July 18, 1913, the plaintiff was pushing a peddler’s cart in'a westerly direction on Houston street between Attorney and Clinton streets, and he claimed that, while turning to the left so as to get around a wagon which was standing alongside the northerly curb, defendant’s wagon came behind him, struck the cart, causing it to swerve so that his right hand was brought in contact with and crushed by the wagon. The testimony introduced on behalf of the defendants was that the plaintiff ran his cart into the wagon and thus brought the injuries on himself. The conflicting evidence required the submission of the issues to the jury.

The serious question in the case is whether reversible error was committed by the admission in evidence of a so-called X-ray blue print of plaintiff’s injured hand and testimony in relation to that paper. Dr. Nammack, called as a witness in behalf of the plaintiff, testified that he examined him March 18,1915, one year and eight months after the accident, and stated the nature and extent of the injury. He also said that with respect to the case he consulted the records of Bellevue Hospital, to which the plaintiff was taken after the accident, and that he brought a paper with him, the X-ray blue print, which was produced in court. Plaintiff’s counsel then asked the witness if the blue print correctly showed the position at the time of the trial of the fingers in the palm of plaintiff’s hand, bnt instead of answering the question the witness replied '' That X-ray photograph explains the reason of the deformities I found.” Over the defendants’ exception the court refused to strike out the answer. The photograph was then offered and admitted in evidence ‘ ‘ to show the jury in what part of the hand the injury occurred,” as stated by the court, and the witness testified in more or less detail as to the injuries with the assistance of the picture. As the blue print purported to show not merely the location of the injury but also' its extent more or less, it is doubtful whether the limitation placed upon its admission in evidence by the trial justice could be effective.

Plaintiff’s counsel then asked the witness whether the photograph correctly showed at the time of the trial the situation or condition of plaintiff’s hand and the relative position of the bones, which question was objected to, objection overruled and exception taken; and the witness answered: “It corresponds to the deformities and disabilities I found.”

Further than the testimony of the doctor that he consulted the records of Bellevue Hospital in regard to the case there is no evidence either that an X-ray picture was taken of the plaintiff’s hand or that the blue print produced was a picture of the hand; and while perhaps it would have been proper for the witness to testify that the picture represented the position and condition of the bones at the time he made his examination, if as an expert and without the aid of the photograph he could so testify, the witness did not state that it was such representation, but that it “ explains the reason of the deformities I found,” and “ corresponds to the deformities and disabilities I found.”

The jury found a verdict in favor of plaintiff for $1,500 and it is probable that the amount of the verdict was influenced by this incompetent evidence. It follows that the judgment must be reversed and a new trial ordered, with costs to appellants to abide the event.

Bijur and Page, JJ., concur.

Judgment reversed and new trial' ordered, with costs to appellants to abide event.  