
    TREANOR v. MANHATTAN RAILWAY CO.
    
      N. Y. Common Pleas, General Term;
    
    
      November, 1891.
    1. Neglige?ice.'\ Whether negligence need not be shown in order to sustain an action for personal injuries, if the injury was occasioned by the voluntary act of the defendant; e. g„ throwing a bottle. —Query 
      
    
    2. Evidences negligencel\ The fact that plaintiff was injured by a missile contained in refuse that was being shoveled from the drip pans under defendant’s elevated railway at an elevation of fifteen feet, into a cart near a crossing of a city street—held, sufficient evidence of negligence to sustain a verdict.
    3. Witness y physician.] In an action for personal injuries, plaintiff, by testifying as to the effects of defendant’s act upon her physical condition, expressly waives, within the meaning of Code Civ. Pro. § 836, her right to object to defendant’s calling the physician who attended her to testify as to the nature of the injury. 
    
    Appeal from a judgment entered upon an order of the General Term of the City Court of New York affirming a judgment entered upon a verdict in favor of plaintiff at a Trial Term of that court.
    The action was brought by.Susan Treanor against the Manhattan Elevated Railway to recover for injuries from being struck in the head by a bottle contained in refuse that was.being shoveled from “ drip pans ’’ under defendant’s elevated railway structure into a cart in the street below near a crossway.
    On direct examination in her own behalf, plaintiff testified as follows as to her physical condition : “ I became very sick on my way home. My nose was bleeding from where I got the blow; I was sick then from that time on for four.weeks and confined to my bed, except that I might have sat upon the sofa a little. I was so sick that I could not help myself in any way, nor can I work yet at my household duties. During those four weeks, I experienced a numb pain in my head. I feel pain, and my eyes are also affected from it. I was sick from my stomach for three or four days. I got sick before I went home on that day and that sickness in my stomach continued three or four days. I had a discharge from my ear; it was something like pin heads, and it was that way for three weeks. For those four weeks I was not able to wash nor iron, nor am I able to do so yet. When I attempt to wash or iron I experience a dizziness in my . head, and I cannot stoop at all without a blindness in my eyes comes on.”
    Plaintiff’s testimony on cross examination was substantially the same. She also stated that a certain doctor attended her, and had applied ice to her head to keep down the swelling.-
    The physician mentioned by plaintiff was called by defendant as a witness, but was not permitted to testify against plaintiff’s objection. *.
    
      Julien T. Davies, Samuel Blythe Rogers and Joseph H. Adams (Davies & Rapallo, attorneys), for defendant appellant.
    I. The court erred in excluding the testimony of the physician as to the condition of plaintiff’s head on the day of the alleged injury, the plaintiff having expressly waived her right to treat the physician’s testimony as privileged (Citing Marx v. Manhattan R. Co., 56 Hun, 575; In re Coleman, 111 N. Y. 220; McKinney v. Grand st. etc. R. R. Co., 104 Id. 352 ; Hunt v. Blackburn, 128 U. S. 464 ; Edington v. .Ætna Ins. Co., 77 N. Y. 564; Sims v. Sims, 75 Id. 446).
    II. The plaintiff failed to prove that the defendant, in its manner of cleaning drip pans, omitted to exercise that degree of care which an ordinarily prudent person,would have used under similar circumstances (Citing Kelly v. Manhattan R. Co., 112 N. Y. 443 ; Morris v. N. Y. Central, etc. R. R. Co., 106 Id. 678 ; Laffin v. Buffalo, etc. R. Co., Id. 136 ; Brady v. Manhattan R. Co., 6 N. Y. Supp. 533 ; Hanrahan v. Manhattan R. Co., 53 Hun, 420; Dougan v. Champlain Trans. Co., 56 N. Y. 1; Loftus v. Union Ferry Co., 84 Id. 455).
    
      Charles D. Ridgway, for plaintiff respondent.
    I. It was recicle: s for defendant to have the refuse from its drip pans thr -wn from its elevated structure across the cross walk in the street of a populous city into carts standing in the street below.
    
      II. The court did not err in excluding the testimony of the physician. Plaintiff testified that “ a swelling came there to which the doctor put ice for the purpose of keeping it down,” but this testimony was brought out by defendant on cross-examination and does not bring the case within the terms of Marx v. Manhattan R. Co. (56 Hun, 575). The plaintiff nowhere testified as.to what took place between herself and the physician. She did not open the door of. the consultation room, and if defendant in his cross-examination asked her questions respecting what took place therein, he, is bound by her answers, because the examination would cease to be cross-examination (Citing Reneham v. Dennin, 103 N. Y. 579; Jones v. B. B. & W. E. R. R. Co., 21 State Rep. 169; Grattan ,v. Metropolitan Life Ins. Co., 80 N. Y. 282).
    
      
       See note on p. 51.
    
    
      
       See note at the end of this case.
    
   Pryor, J.

On this appeal we have no jurisdiction to review the evidence, except' to ascertain if it be sufficient to sustain the verdict; that is, sufficient to authorize the inference of defendant’s liability.

Plaintiff alleges that the bottle was thrown “ carelessly and negligently;” but it is a question whether negligence be an essential element in the cause of action. The cause of the injury, i. e., throwing the bottle, was the voluntary act of the defendant. “ Looking into all the cases from the Year Book in the 21 Henry VIL, I find the principle to be that, if the injury be done by the act of the party himself at the time, though it happen accidentally or by misfortune, yet he is answerable ” (GROSSE J., in Leame v. Bray, 3 East. 593, 599). “ Though a man do a lawful thing, yet if damage do thereby befall another, he shall answer it if he could have avoided it ” (Lambert v. Bessey, T. Raymond, 421, 423; Weaver v. Ward, Hobart, 134 ; Underwood v. Hewson, 1 Strange, 596). And this ancient principle of liability appears to be still the law of New York. “ Where the injury is not the effect of an unavoidable accident, the person by whom it is inflicted is liable to respond in damages ” (MARCY, J., in Bullock v. Babcock, 3 Wend. 391). In an action against the Colonel of the Seventh Regiment for an accidental wound to a spectator by a shot from a gun supposed to be unloaded, the plaintiff had a verdict; and on appeal from the judgment, Denio, C. J., said: “ I am of opinion that the judge might properly have instructed the jury that the evidence that the defendant had commanded the firing, and that one of the men fired a gun charged with a ball, by the discharge of which the plaintiff was wounded, was sufficient to sustain the action, whatever precaution the defendant and his subordinate officers had taken to provide against the accident ” (Castle v. Duryee, 1 Abb. Ct. App. Dec. 327, 331.)

The law is propounded otherwise in Massachusetts (Brown v. Kendall, 6 Cushing, 292); in Connecticut (Morris v. Platt, 32 Conn., 75); and by the Federal supreme court (Nitro-Glycerine case, 15 Wall. 524).

Assuming, then, the rule of liability as enunciated by these courts, namely, that an injury resulting from mere accident is not an actionable wrong ; and that “ the measure of care against an accident, which one must take to avoid responsibility, is that which a person of ordinary prudence and caution would use, if his own interests were to be affected and the whole risk were hisown ” (FIELD, J., 15 Wall. 524, 536), we are still of opinion that the evidence was ample to justify the inference of negligence against the defendant. The mode in which the defendant discharged the contents of its drip-pans, namely, by shovel-ling them from an elevation of fifteen feet into carts standing near the crossway of a street in a populous city, when among those contents was a missile capable of inflicting serious injury on pedestrians below, was in itself sufficient to warrant an inference of the absence of the care and caution which the law exacts. The evidence discloses that the refuse in the drip pans might have been lowered in baskets; and there is no pretence of warning to passengers along the street. “ Instead of depositing the snow incumbering the roof in the yard attached to the premises of defendant, it was cast into the street, without .any warning of danger being given to passers-by. It was negligence in the highest degree to throw snow and ice from the roof of a building into a thoroughfare of a crowded city, without using some precautions against accidents ’’ (Wright, J., in Althorf v. Wolfe, 22 N. Y. 355, 359).

Supposing the proof sufficient to sustain the inference of negligence, still defendant impeaches the judgment for errors upon offers of evidence.

To aggravate the amount of her recovery, the plaintiff testified minutely and circumstantially to the effects of the blow upon her physical condition, and disclosed to the jury, without reservation, all the ill consequences of the injury to her health and comfort. Thereupon the defendant called the physician who had attended the plaintiff and propounded to him this inquiry:' What did you discover as being wrong with her head on the 16th of July, 1889?” Plaintiff objected to the question and the court excluded it, to which ruling the defendant duly excepted.

The only conceivable ground for the rejection of the evidence is its assumed incompetency under section 834 of the Code of Civil Procedure, which forbids a physician or surgeon from disclosing “ any information which he acquired in attending a patient.” But section 836 provides that upon an express waiver by the patient, the evidence becomes admissible; and the question is, does the record before us exhibit such waiver by the plaintiff ?

Although the statute prescribes an express waiver, the court of appeals has decided that it may be inferred from conduct; and that by making an attorney witness to his will, a testator precludes his representative from objecting to the disclosure by the attorney of professional communications (Matter of Coleman, 111 N. Y. 220). So if a party in his own behalf testify to a confidential interview with his physician, his adversary may call the physician to contradict the story of the patient (Marx v. Manhattan R. R. Co., 56 IIun, 575). In the latter case, so far from a disclaimer of his privilege, the patient strenuously asserted it on the trial; but, contrary to his express protest, the court raised a presumption of waiver.

The thing forbidden by the Code -is the disclosure of professional information, and the policy of the enactment is to protect patients in the free revelation of their maladies to their physician. But what if, in order to enforce a claim against a stranger, the patient himself promulgate the information, and uncovers his maladies and infirmities in court; does he not thereby break the seal of secrecy and absolve the physician from the obligation of silence? Does he not, in the strictest and most emphatic sense, waive his privilege ? Is it to be tolerated that, to mulct another in damages, he may inflame a jury with a false or exaggerated story of his injuries a'nd suffering, and yet a physician whom he has consulted is not to be allowed to prevent the meditated injustice by a truthful statement of the case ? It is to be borne in mind, too, that here the physician was not called to reveal the ailments of the patient, but to prove that she suffered from no such injuries as she represented. Obviously respondent’s con ■ tention is as inconsistent with the object and policy of the statute as it is fatal to the interests of justice.

In McKinney v. Grand Street, etc., R. R. Co., (104 N. Y. 352, 355) the court of appeals held that when the condition of the patient is once disclosed with his consent, “ it is then open to the consideration of the entire public, and the privilege of forbidding its repetition is not conferred by the statute”—declaring, as the ground of its decision, that “ the object of the statute having been voluntarily defeated by the party for whose benefit it was enacted, there can be no reason for its continued enforcement.” In Hunt v. Blackburn (128 U. S. 464,470), the supreme court of the United States, by Field, J., said : “ The privilege is that of the client alone, and no rule prohibits him from divulging his own secrets; and if the client has voluntarily waived the privilege, it cannot be insisted on to close the mouth of the attorney.” In People v. Schuyler (106 N. Y. 298, 306), the court of appeals say,per Curiam,: “ The object of the statute was to prevent the disclosure by a physician of his patient’s ailments and infirmities,and it may be queried whether it makes him incompetent to testify that his patient was free from disease of any kind. Can a party himself, upon a trial, expose his ailments and make them a subject of inquiry, and then object that his physician shall tell anything he knows about them ?” In Marx v. Manhattan R. R. Co. (supra) the supreme court at general term in this department, per Van BRUNT, P. J., say:

The patient may keep the door of the consultation room closed, but he cannot be permitted to open it so far as to give an imperfect and erroneous view of what took place, and then close the door when the actual facts are about to be disclosed ... In construing this legislation, we must consider the object that was sought to be attained, viz., the greatest freedom in consultations with a physician. The reason for the rule no longer exists where the party himself pretends to give the circumstances of the privileged interview.” Although the precise point now presented has not been adjudicated, we have no hesitation in ruling that the offered evidence was competent, and that it was essential error to exclude it.

Judgment reserved and new trial; costs to abide the event.

Daly, C. J., and Bischoff, J., concur.

Note on the Privilege of Information Acquired by a Physician and the Mode of its Waiver.

According to the principle of analogous decisions made in the case of the privilege of attorney (Lewin v. Redfield, 2 Week. Dig. 198; Martin v. Platt, 51 Hun, 429,) what the physician may- say, communicate to outsiders by direction or request of the patient is not within the protection of the statute.

An interview with a third person who applies to consult the physician not on his own behalf, but not indicating that he represents any one else who needs or desires medical assistance, has been held not privileged (Babcock v. People, 15 Hun, 347). But on the other hand statements made by a third person who called on the physician to ask him to come and attend a woman who was dangerously ill, the statements being made to the physician in reply to his inquiries and to enable him to prescribe, were held privileged (People v. Brower, 53 Hun, 217).

The physician who attends in consultation at the request of the regular attending physician and advises a prescription, is within the statute; and his testimony as to the condition of the patient is privileged. “ It is true,” said the court in such a case, “ that the witness was not called by the patient, but he was called by the attending physician, and went in his professional capacity to see the patient, and that was enough to bring the case within the statute, for he obtained his information as an attending physician ” (Renihan v. Dennin, 103 N. Y. 573, 578 ; s. c., 18 Abb. N. C. 101.)

The question has arisen in one or two cases as to information acquired by the physician’s partner or by an assistant one accompanying the physician. In the case of an action on a life policy, it was held that the examining physician’s partner was not competent to testify as to what he learned of the patient when the latter was at the office of the firm for treatment by the other partner, (Ætna Ins. Co. v. Deming, 123Ind. 384; s. c., 24 Northeast. Rep. 86; Id. 375, and in Grossman v. Supreme Lodge of K. & L., 6 N. Y. Supp. 821), it was held in a case in the supreme court in this State that the exclusion applied to the testimony of a physician who went out of curiosity with the physician in attendance at a hospital and assisted in making examination of a patient who was an inmate and partly attended her in connection with the physician in attendance. And in a recent unreported case in this city it has been ruled that the physician employed in a hospital to notice and enter in its records the arrival and condition of patients coming in, cannot testify to the information so acquired.

The case of Hope v. Troy and Lansingburgh R. R. Co, 40 Hun, 438, is examined in Mellor v. Missouri Pac. Ry. Co., 105 Mo. 455 ; s. c., 16 Southwest Rep. 850, and followed in holding—that a patient, calling his physician to testify, does not thereby waive his right to object to other physicians, who may have treated him, testifying on the same subject. .

Until amended last year by a clause which I will' afterwards state, the statute by its terms applies to every examination of such physician “ unless the provisions thereof are expressly waived by the . . . , patient.”

In this state of the law it was held that the patient or his attorney, while the patient lived, could waive the privilege in court, and that the patient could waive it by previous conduct before going into court; but that after the patient’s death no one could waive it. ,

Contests over this irrevocable character of the privilege led to the amendment of 1891 in these words":

“ But a physician or surgeon may upon a trial or examination disclose any information as to the mental or physical condition of a patient who is deceased which he acquired in attending such patient professionally, except confidential communications and such facts as would tend to disgrace the memory of the patient, when the provisions of section eight hundred and thirty-four have been expressly waived on such trial or examination by the personal representatives of the deceased patient, or, if the validity of the last will and testament of such deceased patient is in question, by the executor or executors framed in said will,” (L. 1891, p. 736, c. 381).

Several important questions will arise upon the construction of this amendment, which I have outlined in an article on “ The Physician as a Witness ” to appear in the Columbia, Law Times for April, 1892. 
      
       Another way of stating this question presented by the apparent conflict in these cases, is to ask whether in the doing of an act not expressly authorized by law and which necessarily involves danger to strangers who are not trespassers, is not in itself negligence, irrespective of any care that may be exercised in the details of the act. Compare Vincett v. Cook, 4 Hun, 318, with Scullin v. Dolan, 4 Daly, 163; Sheldon v, Sherman, 42 N. Y. 484 ; Loop v. Litchfield, Id. 351; Center v. Finney, 17 Barb. 94; aff’d in Seld. Notes, p. 80 ; Harvey v. Dunlop, Hill & D. Supp. 193.
     