
    Jesse Jones, Resp’t, v. The Brooklyn, Bath and West End Railroad, App’lt.
    
      (City Court of Brooklyn, General Term,
    
    
      Filed December 26, 1888.)
    
    1. Negligence—When a question for jury.
    If plaintiff -was thrown down by the starting of the train while he was in the act, of getting on it was for the jury to say whether defendant was negligent or not.
    
      2. Same—Physician—Privileged information—Code Crv. Pro., § 834.
    The plaintiff’s physician in attendance on the day of the amputation of plaintiff’s leg was asked by the defendant’s attorney on the trial, "What was ihe condition of plaintiff’s leg at that time ?” This was excluded by the trial court on the ground that it called for privileged information acquired by the physician in attending the patient in a professional capacity. Meld, no error, and that such information is privileged unless waived by the plaintiff. Edington v. JEtna IÁfe Insurance Vo, (77 N. Y., 571) explained and distinguished.
    4. Same—What not waived by plaintiff as to pbivileged information of his physician.
    It is not a waiver by the plaintiff of his right to close the lips of his physician in such a case, by bringing an action to recover for injuries for the loss of his leg, and by offering testimony to the fact that it was broken. That the plaintiff testified his leg was broken does not open the mouth of his physician to tell all the information he has acquired; nor does the fact that a physician sent by the defendant to look after its interest and incidentally to attend the "wounds of plaintiff, was fully examined before the jury as to the injuries of the plaintiff, amount to such a waiver by the plaintiff.
    5. Same—Witness—Competency of.
    A boy eleven years old, who testified that he believed in heaven, the home of God, and in hell, the home of the devil, that at death the good ,will go to heaven and the bad to hell, and that it was bad to lie, was a competent witness to testify.
    
      Chas. J. Patterson, Esq., for resp’t; C. Ferguson, Jr., Jas. C. Church, Fsq., for appl’t.
   Van Wyck, J.

This is an action to recover damages for personal injuries, through the negligence of defendant. There is a direct conflict between the theory of plaintiff and that of defendant in. reference to the accident.

The testimony for plaintiff tends to show that while he was in the act of getting on an open car, the conductor gave ■the signal to start, and that the train was started with a violent jerk, throwing him down and breaking his leg.

The testimony for defendant tends to show that plaintiff, while attempting to cross in front of the engine, was knocked down and his leg was broken in that way. Some of the witnesses for the defendant did not identify the plaintiff, and it is not impossible that they have confused this occurrence with some other' accident at the same station. The defendant elicited from one of its own witnesses, that plaintiff, on the morning after the accident, described ■ the manner of the accident substantially the same as he did on the trial. The conflict between the two theories was fairly submitted to the jury. The jury were instructed that, if plaintiff was injured in an effort to cross in front of the engine, he could not recover, and, that, if they determined that plaintiff was thrown down by the starting of the train while he was in the act of getting on, then it was for them to say whether defendant was negligent or not.

The jury settled the question of fact in favor of the plaintiff, and we see no reason to interfere with their decision.

Doctors Lester and Buckmaster testified that they were called, in consultation with Doctor Maxfield, to examine the injuries of plaintiff, and that they examined the injuries to his leg, on the day of the operation, the amputation of his leg. Then defendant’s counsel asked each of them what was the condition of Jones’leg at that time?” This was excluded, on the ground that it called for privileged information acquired by a physician in attending a patient in a professional capacity. There is no question that the relation of physician and patient existed between the parties at that time. But defendant’s counsel insists that the testimony called for did not affirmatively appear to be information necessary to enable the physician to act in his professional capacity. To our minds, this is a refinement that would soon wipe out the beneficent influence of the rule of silence imposed upon a physician in the interest of suffering humanity. The object of this rule was to encourage patients to disclose freely to the physician’s hearing, touch and sight, all that would aid the physician to a correct diágnosis of the patient’s troubles, and to an intelligent application of his skill thereto. A person’s leg is broken, the physician or surgeon is called in, who examines and amputates it. It is self-evident that the information so acquired was necessary to enable the physician and surgeon to use his knife and apply his drugs. It is unreasonable that the secrets must be first told to enable the court to determine that they were necessary to the physician’s action in his professional capacity, and therefore were privileged and could not be used in evidence. This would accomplish as much good as did the locking of the stable after the horse was stolen.

The counsel of appellant insisted that the statute did not apply to this testimony; that the condition of a broken leg did not call for the disclosure of any of the secrets of the patient; that the condition of the leg was obvious to all; that privacy, the reason of the rule, having failed, the role itself failed. The scars received sometimes in the wars of Venus are as plain to sight as a leg broken in a railroad accident. Yet the physician has no more right to expose the latter to public gaze than the former. Renihan v. Dennin, 103 N. Y., 573; 4 N. Y. State R., 261; Grattan v. Metropolitan Life Ins. Co., 80 N. Y., 281.

The counsel seems to have been misled by the following language of the learned judge delivering the opinion in Edington v. Ætna Life Ins. Co. (77 N. Y., 571), viz.: ‘ ‘Suppose a patient has a fever, or a fractured leg, or skull, or is a raving maniac, and these ailments are obvious to all about him, may not the physician, who is called to attend him, testify to these matters? In so doing there would be no breach of confidence, and the policy of the statute would not be invaded.”

If this is the law, what would prevent the physician from testifying to cancers, fistulas, tumors, syphilitic marks and sores, all of which may be obvious to others than the medical expert; But such is not the law, and the same judge, in referring to this citation, says, in Renihan v. Dennin (103 N. Y., 579; 4 N. Y. State Rep., 261), where the same question, viz.: That the statute should be confined in its application to information of a confidential nature, came before the court in Grattan v. The Metropolitan Life Ins. Co. (80 N. Y., 281):

■ “I again attempted to enforce the same view upon my brethren, and I again failed, and it was there distinctly held that the statute could not be confined to information of a confidential nature, and that the court was bound to follow and give effect to the plain language without interpolating the broad exception contended for.”

It is now very apparent that such information is privileged unless “expressly waived.” Appellant contends that the privilege has been waived:

First. Plaintiff has voluntarily exposed the condition of his leg in bringing an action to recover for injuries thereto, and by offering testimony to the fact that it was broken. That one does not waive the privilege by the commencement of an action to recover damages for the injuries which the physician has been called to attend, has been settled in Sloan v. N. Y. C. R. R. Co. (45 N. Y., 125); Hope v. Troy and L. R. R. Co. (40 Hun, 441, affirmed 110 N. Y., 643; 16 N. Y. State Rep., 998).

That the plaintiff testified his leg was broken does not open the mouth of the physician to tell all the information he has acquired. The condition of the plaintiff’s leg, to the experienced eye of a physician, might have disclosed much that- had not been exposed, viz.: scrrofula in the glands of the leg, or erysipelas of the skin of the leg. It was admitted by both sides that the plaintiff’s leg was badly fractured. Defendant certainly did not care to impress this fact upon the jury; therefore, it must be some other information acquired by the physician which he sought to elicit. Did the bringing of the action, and the testimony of plaintiff that his leg was broken, waive his right to silence the physician in reference to the secrets he acquired? We think not, and it would not help plaintiff to show by these witnesses that his leg was broken, for that fact was really admitted, or rather not disputed, as well as the fact that it had been amputated.

Second. The defendant, after the accident, sent its doctor to the plaintiff, to look after its interest, it is fair to presume, from his testimony, and incidentally to attend the wounds of plaintiff. The defendant put this doctor upon the stand and examined him fully in relation to the injuries of plaintiff.

This, defendant urges, is an express waiver of plaintiff’s privilege to silence the other physicians who attended him professionally. We are at a loss to understand how the •acts of defendant can be construed to be an express waiver of plaintiff’s right to enforce his privilege. It was the voluntary act of plaintiff that was construed to be a waiver of plaintiff’s right in McKinney v. G. Str. P. R. R. (104 N. Y., 352), and not the act of defendant. In our opinion there has been no waiver of the privilege in reference to testimony sought to be elicited from Doctors Lester and Puckmaster. Record v. Saratoga Springs, 12 N. Y. State Rep., 345; Hope v. Troy and L. R. R., 40 Hun, 441; affirmed 110 N. Y., 643; 16 N. Y. State Rev. 998; Westover v. Ætna Life Ins. Co., 99 N. Y., 56.

The testimony was properly admitted on the cross-examination of defendant’s witness to show his bias. The objection was general, and being admissible to show bias, error cannot be predicated thereupon.

At folio 170, defendant, in the re-direct of his own witness, asked Maxfield, “was there anything else said in ■these conversations ” (between him and plaintiff and his wife) “that plaintiff’s counsel has asked in addition to what you have already testified in response to him? A. Mrs. Jones stated, and so did Mr. Jones, they would like a •settlement, because they needed the money, but they were ¡afraid to, because of Mr. Patterson” (plaintiff’s attorney). Mrs. Jones was properly allowed to contradict this statement brought out by the opposite party.

The witness, James Jones, was a lad of eleven years, who testified that he believed in heaven, the home of Gfod, .and hell, the home of the Devil; that at death the good will go to the former and the bad to the latter; that it was bad to he, both in and out of court; for the former his parent would whip him, and for the latter he would be sent to prison. We think this witness was competent to testify. 14th ed. Gfreenleaf’s Ev., §§ 367-369.

For the foregoing reasons, the judgment and order must be affirmed, with costs.

Clement, Ch. J., concurs.  