
    Jacob E. Stever, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
    
      Negligence—a physician may .testify to the painful and, dangerous cha/racter of a hernia —testimony based on the plaintiff’s history of the case—a witness may testify that he' could have heard a bell of whistle if one had been sounded—exclusion -of competent evidence, how cured.
    
    In an action brought to recover the damages resulting from personal injuries ‘ sustained by the plaintiff by reason of the alleged negligence of the defendant, • it appeared that, at the place of the accident, the highway ran north and south • and the railroad east and west; that ¡the four tracks of the defendant’s were numbered consecutively, beginning at the south; that the plaintiff was driving southerly and was struck by a west-bound train running upon track No. 2 at a very high rate of speed; that the plaintiff was carried over 1,600 feet, and was then found sitting unconscious upon the pilot of the locomotive. The evidence tended to show that at a distance of 300 feet from track No. 4 there was a fairly unobstructed view of the track towards the east for about eighty rods, and that at a point eighty-six feet north of track No. 4 there was an unobstructed view east and west for a quarter of a mile. There was evidence tending to show that the night was very dark; that it was snowing hard; that the wind was blowing from the west and that it was difficult to see or hear approaching trains. The plaintiff swore that as he approached the crossing he stopped and looked both ways, and that hearing and seeing nothing he proceeded, while the engineer of the train which struck him testified that when he first saw the plaintiff’s horse it was north of the crossing and .on a full run, which continued until it was struck by the engine.
    
      Meld, that the questions of the plaintiff's contributory negligence and the defendant’s negligence, which consisted in its alleged failure to give proper notice of the approach of its train, and concerning which the evidence was conflicting, were proper subjects for the consideration of the jury.
    A physician who was. called to see the plaintiff immediately after the accident, and who continued to attend him while he was suffering from his injuries, testified that there was a breach in the plaintiff’s right side, which he termed “ direct ' hernia,” and upon his redirect examination he was asked whether a breach of that kind at any time became dangerous to life, or became dangerous or painful in any way. The .witness answered that he thought it was dangerous, and then added, without any further question being put to him, “It may come out and become strangulated so it is impossible ■ to return it without an operation.” He was then asked, also under objection, “Does death sometimes follow?” to which he replied, “Tes, sir; frequently.” ■
    
      Meld, that that part of the testimony relating to the breach and the painful character of the hernia, and its likelihood to result in death, was competent, and was not speculative.
    
      Semble, that while that part relating to the possible strangulation of the hernia was perhaps objectionable, yet, that as it had been volunteered by the witness, and the defendant’s counsel had made no motion to strike it out, it afforded no ground for complaint.
    It appeared that another medical witness had made an examination of the plaintiff in order to qualify himself to testify as a witness in the action, and that a •history of the case had been furnished him by the plaintiff and the attending physician.
    The witness was asked the question whether, from the examination which he had made of the plaintiff; from the history of the case which had been given to him, and his practice and experience as a physician and surgeon, he could give an opinion as to the future effect of the injuries upon the health . of the plaintiff.
    
      Meld, that while the part of the question directing the witness to base his opinion upon the history of the case received oukof court, and from the plaintiff himself, was objectionable, yet, that asi the question was hot in its entirety an improper ohe, the defendant, to take advantage, of the defect, should have pointed out the objectionable feature instead of talking a general objection.
    A witness had testified that he saw the train' and that the bell was not rung nor the whistle blown; he also stated that he was standing at a point about a quarter of a mile distant from the ringing post, which was about eighty rods east of the crossing and that his hearing was good. He was then asked whether he could have heard it if the bell had been rung or the whistle sounded, and to this he replied that he could have done so.
    
      Meld, that his answer was admissible, as it was not the mere expression of an opinion, but involved the statement of a fact concerning which the witness, because of his experience or knowledge as to the acuteness of his faculties, was more competent to speak than any one else:
    Although competent testimony has been rejected, if its effect has been supplied . by other testimony actually received, the court will- not order a new trial because of the error.
    Appeal by the defendant, The New York Central and Hudson River Railroad Company,-from an order of the Supreme Court, made at the Waytie Circuit and entered in the office of the clerk of the county of Wayne- on- the 26th day of December, 1895, denying the defendant’s motion for a new trial made upon the minutes and upon the ground of newly-discovered evidence.
    
      Albert H. Harris, for the appellant.
    
      Stephen K. Williams, for the respondent.
   Adams, J.:

This action was brought to recover damages for personal injuries which were sustained by the plaintiff by coming into collision with a train upon the defendant’s track at a highway crossing about one mile east of the village of Newark, Wayne county.

The accident occurred at. a little after six o’clock in the evening of November 22, 1892.

The plaintiff was a manufacturer and peddler of perfumes and extracts. He was driving a - horse attached to a top wagon which had been fitted up with especial reference to his business.

At the point of the accident the highway runs north and south and the railroad east and west.

The four tracks of the defendant’s road .are numbered consecu-r tively from the south, No. 1 being the south track, and No. 4 the north track.

The plaintiff was driving in a southerly direction, and was struck by the “ Chicago Limited,” a west-bound passenger train, running upon track No. 2. The train was several minutes late and was running at a high rate of speed. When the plaintiff was struck he was carried over 1,600 feet, and, when the train came to a stop, he was found sitting upon the pilot of the locomotive unconscious.

The evidence tends to show that this crossing is, by no means, what is called a “ dangerous ” one, but that in ordinary circumstances a traveler approaching it from the north has, at any point within 300 feet thereof, a fairly unobstructed view of the tracks to the east for about eighty rods, and that from a point eighty-six feet north of the north rail of track 4, the view east and west is-wholly unobstructed for a quarter of a mile.

It appears, however,' that upon this occasion the night was very dark, and that the darkness was somewhat intensified by a snow storm of considerable severity. Melvin Ostrander, one of the plaintiff’s witnesses, who resided near the crossing, described it by saying: It was dark and storming. The wind was blowing from the west. It was snowing, storming. Sometimes it came pretty rough, that you couldn’t hardly discover anything; then again it would slack up a little. * * * I noticed in regard to the difficulty of seeing a train that night, for I had to get off the track pretty quick myself, once. By spells that night it was difficult to see the headlight on an engine on account of the storm. * * * My attention was called that evening as to the difficulty of hearing trains as they approached the crossing. It was difficult that evening to hear trains as they approached the crossing.”

Some evidence was given by the defendant tending to show that this account of the storm was somewhat exaggerated, but, on the other hand, several witnesses testified that the storm did prevail with more or less blinding force.

The plaintiff swears that as he approached the crossing he stopped at the north end of the cattle guard fence and looked out from his wagon in both directions, but that, hearing and seeing nothing, he proceeded to the second track, where he again looked both ways, which was the last he remembers until he regained consciousness after the accident. This statement was flatly contradicted by the engineer of the train which struck the plaintiff, who testified that when he first, saw the plaintiff’s horse it was north of track Nó. .4, on a full run, which continued until the engine struck it; and it is now insisted by the learned counsel for the defendant that the verdict of the jury is'.so clearly against the weight of evidence upon the question of the plaintiff’s own negligence as to justify a reversal by this court. -

.- We are.of the opinion, however,.that the defendant’s contention is not well founded, for, although it may seem -almost -incredible that the plaintiff could have approached this crossing in the. manner described by him without either seeing or hearing the train ..which struck him, still there was some evidence which-tended to show that the storm was of such a character as to obstruct, even .the headlight of the locomotive from view, and to prevent the noise of the train’s .approach from, being, heard. This being the case, we cannot say* as .matter of law, that the jury were bound to disregard it. ....

The same is. true in regard to the question of the defendant’s negligence, which consisted in its alleged failure to give proper notice of the approach of its train, and concerning which the evidence-was .equally conflicting and.perhaps quite as unsatisfactory. The jury, liowever, saw the witnesses upon the stand and heard them testify. The -evidence was submitted to -them by the learned court in. a' .charge which is not subjected to criticism, and unless some error was committed in the. reception or rejection of. evidence, -ye. are unable to see why we are,not concluded by -their verdict.

, Our attention has been directed to several such exceptions which, it is claimed, are entitled to very careful consideration.

First in the order of their presentation-are those.'which, arose upon the answers to certain qiiestions asked of the witness ' Dr.' Xandon, who was called to see the plaintiff immediately after the accident and who'continued to; attend" him while he was suffering from his injuries. He had testified to the existence of a breach upon the plaintiff’s right side, which he termed direct hernia,” and upon his re-direct-examination was asked whether “ a breach of that kind at any time becomes dangerous to life, or becomes dangerous or painful in any way?” This question was objected to by the' defendant’s counsel as incompetent, immaterial and speculative,' but the court permitted him to answer the same upon condition that the witness knew whether- such a breach was dangerous or painful. The defendant’s counsel thereupon excepted, and the witness answered: “ I think it is dangerous,” and then he added, without any further question: It may come out and become strangulated so it is impossible to return it without an operation.” He was then asked: Does death sometimes follow ? ” to which question the defendant’s counsel also .objected as incompetent, immaterial and speculative. The objection was overruled, to which decision the defendant’s counsel duly excepted and the witness answered : “ Yes, sir, frequently.” We fail to see how this evidence was incompetent or wherein it was fairly open to the objection of being speculative.The breach itself was a fact, to the existence of which most clearly the witness had the right to testify, and, as an expert, he was likewise competent to express an opinion as to whether it was likely to cause pain or become dangerous to life. The question did not call for any opinion as to some possible complication which might arise in the future, but only as to what might result from existing conditions ; and it is no more speculative to say that hernia causes pain and might terminate fatally than it is to say the same of appendicitis or peritonitis. The distinction between evidence of this character and such as was deemed incompetent in the Strohm Case (96 N. Y. 305) and in the Tozer Case (105 id. 617) is clearly pointed out in the opinion of Judge Fraon in the case of Griswold v. N. Y. C. & H. R. R. R. Co. (115 id. 61).

It is quite possible that the evidence which the witness gave with reference to the hernia becoming strangulated is open to the criticism made by the counsel, but it is to be borne in mind that this portion of his evidence was not in response to any question. It was vólun-. teered upon his part, and the record does not disclose that any motion was made by the defendant’s counsel. to strike the same therefrom.

Other exceptions which are supposed to present erroneous rulings arose during the direct examination of Dr. Charles H. Towlerton, a witness sworn on behalf of the plaintiff, who was asked the following question, viz.: Q. You may answer whether, from the examination which you made of the plaintiff and history of his case that has been given to you, your practice and experience as a physician and surgeon, you are able to give an opinion as to the future effects of these injuries of the plaintiff, as to what the effect will be in the future, as to affecting his health? A. Yes, sir; I could give an opinion. Q. What is your opinion ? [Defendant’s counsel objected as incompetent and immaterial and speculative. Overruled;. exception for defendant.] A. I don’t think he would be able to do the work that he would before, by any means, and I think he, .naturally, would be a feeble man, not a strong' man. His present condition would certainly indicate that. Q. What, in your opinion, is the probability of his recovery from these injuries ? [Defendant’s counsel objected as incompetent, immaterial and speculative. Objection overruled; exception for defendant.] A. He cannot recover from some' of them; that is certain. Q. Just name them, if you please. [Defendant’s counsel' objected as incompetent, immaterial and speculative. Objection overruled. Exception for defendant.] A. I don’t think he will ever have the complete use of his limb again; and I don’t think that his nervous system or .general strength will ever be as it was before. The hernia, of course^ will probably be persistent.”

It appears that the history of the plaintiff’s case which this witness had obtained- was furnished him by both the plaintiff and Dr. Dan don ujdoii some occasion when the witness was making a physical examination of the former, in Order to qualify himself to testify in the case, and he had already described very minutely the plaintiff’s- condition which this examination .disclosed. Within all the authorities, therefore, he was certainly authorized to express an opinion, if he had one, as to the probable future condition of the plaintiff’s health. (Griswold v. R. R. Co., supra; McClain v. B. C. R. R. Co., 116 N. Y. 459.)

The only objectionable feature of all this evidence is contained in the first question asked> which apparently furnishes to some extent at least the basis upon which the opinion thereafter expressed is made to rest and which embraced a history of the case, received out of court, and from the plaintiff himself; but the answer to this is, that the question, in its entirety, was- not. an improper one, and as. the objectionable feature was not specifically pointed out, the counsel’s objection, which was- quite general in its character, -will not avail him upon this appeal. (Wallace v. Vacuum Oil Co., 128 N. Y. 579.)

The plaintiff called as a witness one John E. Burleigh, who testified that he saw the train which struck the plaintiff as it approached and crossed the highway, and that the bell was not rung nor the whistle blown. He also stated that he was standing at a point about a quarter of a mile distant from the ringing post, which was about eighty rods east of the crossing, and that his hearing was good. He was then asked if he could have heard it if the bell had been rung or the whistle sounded, and this question was objected to by the defendant’s counsel as incompetent, immaterial and speculative. The objection was overruled, to which ruling an exception was taken, and the witness answered in the affirmative. It is now contended that the court erred in receiving this evidence, inasmuch as it was for the jury and not for the witness to determine whether the latter could or could not have heard the signals if any had been given.

In disposing of this contention, it is to be noted that the witness was asked, not whether he would, but whether he could, have heard the bell or whistle. This, it seems to us, called for something more than the mere expression of an opinion, for the answer-involved the statement of a fact, about which the witness, by reason of his experience or the knowledge which he possessed as to the acuteness of his faculties, was more competent to speak than any one else, and, therefore, it was one to which the plaintiff was clearly entitled.

The attempt to draw the line between the statement of a fact and the expression of an .opinion is often attended with some difficulty, but this precise form of question has received judicial sanction in a case which arose in the Court of Common Pleas of the city of New York, but which ultimately reached the court of last resort. (Casey v. N. Y. C. & H. R. R. R. Co., 6 Abb. N. C. 104-124; S. C., 78 N. Y. 518.)

The only remaining exception relates to the exclusion of evidence which the defendant sought to obtain from the witness Monahan, who was the conductor of the train in question. He testified that when his train came to a stop after the accident, his rear trainman went back on the track with red and white lanterns to protect the train, and he was asked how far the trainman was away when he last saw him. -This question was objected to and the objection was sustained, to which the defendant’s counsel duly excepted.

We are inclined'to think that, strictly speaking, this ruling was erroneous, as the evidence sought to be elicited' was designed to meet that which had been given by the plaintiff and his witnesses .as to the violence of the storm and the extent to which it obscured the view, hut we are not satisfied that the error, if any, is of sufi fieiént importance to justify a reversal. The witness had already sworn that the trainman was 360 feet away from him when they exchanged signals; that he saw' the answering signals distinctly, and watched the trainman as he went back; that he couldn’t say how far he went back, but that it might have been a mile; and this testimony appears to cover, the ground so fully as to warrant the conclusion that the defendant’s position could scarcely have been strengthened by any answer which the witness could possibly have given.

Upon a careful review of the entire case, therefore, we are of the opinion that no error was committed by the learned court which will make a retrial necessary, and that the order appealed from should, consequently, be affirmed.

All concurred.

Order appealed from affirmed, with costs.  