
    Mary A. Speck, Respondent, v. International Railway Company, Appellant.
    Fourth Department,
    July 6, 1909.
    Railroad — negligence — duty of railroad to keep stopping places free from snow — evidence — privilege of physicians — waiver.
    An electric railroad running through a country district is bound to keep each regular stopping place free from dangerous accumulations of snow and ice even at .places where there are no street intersections. But the duty is a relative one to be determined by taking into consideration the weather conditions on the one hand and the safety of the passengers on the other. Each case Is'to be determined by the jury upon its particular facts..
    The plaintiff on alighting from an electric car at a regular stopping place fell on a sloping bank of snow which had been thrown iip by blades attached to cars for the purpose of clearing the rails of snow. Evidence examined, and held, that it w.as for the jury to say whether the defendant had furnished the plaintiff with a reasonably safe place to alight.
    Where, in an action to recover for personal injuries the plaintiff has introduced testimony of her own physician, it is error to exclude testimony of another physician who was called in consultation with the plaintiff’s physician showing the extent of the injuries. By calling one of the physicians the plaintiff waived the privilege as to the other. The amendments to section 836 of the Code of Civil Procedure have not changed this rule.
    McLennan, P. J., and Williams, J., dissented in part.
    .Appeal by the defendant, the International Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Niagara on the 1st day of March, 1907, upon the verdict of a jury for $1,600, and also from an order entered in said clerk’s office on the 5th day of March, 1907, denying the defendant’s motion for a new trial made upon the minutes.
    
      Morris Cohn, Jr., for the appellant.
    
      Augustus Thibaudeau and John H. Leggett, for the respondent.
   Spring, J.:

The plaintiff, a married lady of the. age of sixty-three years, claims to have been injured by reason of the negligence of the defendant while alighting from one of its cars.

The defendant operates a double-track street surface road along the center of River road from Buffalo to Niagara Falls. The respondent resides on the south' side of this road in the village of La Salle; although the land is used for farming purposes it is quite thickly settled. In the forenoon of March 13, 1905, the plaintiff went to Niagara Falls on one of defendant’s cars, accompanied by a married daughter who resided near her. They remained in Niagara Falls until shortly after noon, taking the twelve-thirty car homeward, making the run in fourteen minutes. There was a regular stopping place for the defendant’s cars at Shearer’s, a short distance east of where the plaintiff resided, and the cars stopped at that point to enable the plaintiff to alight, which she did on the south side of the car. She had several packages which the conductor held until she had stepped off the car. Immediately after she gob off she slipped and fell, striking her knee against the step of the car resulting, as she claims, in serious injury. The plaintiff and her daughter testified that the conductor told her as the car stopped “ it was all safe to get off.”

There was a heavy body of snow on the ground at the.time of the accident to the plaintiff which had been increasing since-about the first of February. The defendant frequently ran a rotary' snow plow along the tracks throwing the snow to the north side of the street, which Was between fifty' and sixty feet in Width. The snow on the north side was several feet high. There was sufficient cleared space on this side of the track for sleighs, although the travel was chiefly along the track. The road on the south side of the tracks Was little used. The only snow thro wn on that side by the: defendant was by a blade attached to the car to clean the rails of snow, and which projected ten or twelve inches beyond the ráil, and the snow deflected upward on that side. The alternating ■rain and freezing weather made this incline and also the place imme- ■ diately adjacent to the south rail slippery,and glary as ice. The place where the cars stopped for the accommodation of passengers was filled by this projecting blade with snow and ice, which Was allowed to remain.

The condition is thus described by one of the plaintiff’s Witnesses: There was a. lot of snow on the south side of the track, beyond Shearer’s stopping place, west; the stopping place- was all right when the scrapers wasn’t coming along; when they came along they filled up the path again. Maybe they filled it up five or ten times a day.” The village street commissioner testified: “ I know where Mr. Shearer lives and that there was a place there for cars to stop. I can’t describe the highway in that place on the 13th day of March, 1905, because I can’t remember, I should say the snow was in the neighborhood of eleven or twelve inches close-to the track, farther back it was about three or four or five feet higher, it ran in a slant toward the track1. That runs on a slant; where their little scraper comes-up on the-end of the car and cleans the rail it leaves it on a kind of slant. I don’t know just how' deep these scrapers are. I should -say ten or twelve inches. The slant is towards the track. The River Road there is in the village of La Salle and there are frequent stopping places there for people to get on and off these cars and were before this accident. There are thickly populated streets', Hamilton Street, the Bowen district, connecting with that riverway before the accident, and up to that time there were a large number of people who lived in the village and worked or liad business- at Niagara Falls and took these cars back and forth. At the point where the accident occurred the Railway-kept the highway in order.”

The court charged the jury that when the defendant “undertook to land passengers at the place in question ” it was bound “ at all times to afford a reasonably safe place for her to alight from that car and a reasonable opportunity to alight from it in safety.” I think some obligation of this kind certainly rests upon the defendant. (Dixon v. Brooklyn C. & N. R. R. Co., 100 N. Y. 170; Flack v. Nassau Elec. R. R. Co., 41 App. Div. 399.)

The burden may be an onerous one to lay on a street surface road company running through a country district where there is a heavy body of snow for a considerable period of time changing to ice and crust, to keep each stopping place where there are no street intersections free of ice and the- snow leveled down. The duty, while existing, must be a relative one, taking into consideration the weather conditions on the one hand and the safety of the passengers on the other. Each case must be dependent upon its own peculiar facts to be determined by the jury. The defendant selects its stopping place, invites its passengers to take the car and alight at that particular' point, and some assurance of safety must accompany this selection and invitation. The passenger has no choice. He must alight where the defendant directs. We cannot say, as matter of law, in view of all the circumstances, that this stopping place was reasonably safe for the plaintiff as she was assured by the conductor.

The plaintiff claimed that the synovial membrane of the injured knee became inflamed and a permanent injury resulted. She did not consult any physician until May second, when Dr. Welsh,, the family physician, was called. Dr. Welsh, testifying in behalf of the plaintiff, attributed the synovitis to the injury and testified the condition might improve to some extent. The defendant claimed the injury was the result of chronic rheumatism, and evidence was presented tending in some degree to substantiate this claim.

Dr. Horton, a witness on behalf of the defendant, testified that he examined and treated the defendant in May, 1905, in consultation with Dr. Welsh, the attending physician. He was asked: “ State, Doctor, whether you found upon that examination any condition of the plaintiff which you can say with reasonable , certainty resulted, from any injury which she had received % ” This was objected to as privileged, and the court inquired if the doctor was in consultation with plaintiff’s physician, which was conceded, and the court excluded the testimony after the plaintiff’s counsel declined to waive the privilege. ' The court, after ruling, remarked: “ He lias- got to waive it before you go áuy further with him, it being conceded that he learned what he did learn, and heard what he did hear, if anything, while he was acting in a professional capacity to this woman; and lie.'should not voluntarily, whether he does or not,: come here as a witness without the privilege being waived.” An exception was taken to the exclusion of this testimony.

I think this ruling was error. In Morris v. Railway Company (148 N. Y. 88) the action ivas to recover damages for personal injuries, and the plaintiff had been attended by two physicians, and one testified on the trial in her behal'f. The defendant called the other physician for the purpose of showing the extent 'of the injuries: claimed to be sustained by the plaintiff, but his evidence was excluded as privileged. The Court of Appeals reversed the judgment, holding that the plaintiff by calling one of the physicians removed the ban as to the other and waived the privilege inuring to her benefit by section 834 of the Code of Civil Procedure.

That case is decisive of the present one, unless the amendments to the Code provisions have nullified its effect.. After that decision, section 836 of the Code of Civil Procedure was amended by chapter 53 of the Laws of T899, which retained, among other section's, the prohibitory provisions of section 834 “unless the provisions thereof are expressly waived upon the trial * * * by the * * * patient,” and which had been added to the statute by chapter 381 of the Laws of 1891. ■ The following limiting provision,, however, was added: The waiver “ provided for must be made in open court.” There were amendments (Laws of 1904, chap. 331, and Laws of 1905, chap. 331), neither of which changes the statute of 1899 so far as it affects the present question.

Since the statute of 1899 became a law the subject has been passed upon by the Court of Appeals several times, and in each case the patient was held to have waived the privilege of the statute by herself opening the door and disclosing the condition which, except for her disclosures, could riot have been testified to. (Clifford v. Denver & R. G. R. R. Co., 188 N. Y. 349; People v. Bloom, 193 id. 1; Capron v. Douglass, Id. 11.)

In each of these cases there was no express waiver by word of mouth in open court, but the act of the plaintiff by a proceeding in court was deemed .to constitute a waiver within the purview of section 836 of the Code of Civil Procedure.

For this error I think the judgment should be reversed.

Kruse arid Robson, JJ., concurred ; McLennan, P. J., and Williams, J., concurred for reversal on ground stated in the opinion and also upon the ground that the plaintiff failed to establish actionable negligence on the part of the defendant.

Judgment and order reversed and new trial ordered, with costs to appellant to abide event.  