
    Mary A. Morris, Resp’t, v. New York, Ontario & Western Railroad Co., App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 1, 1893.)
    
    1. Evidence—Confidential.
    ■ What the regular and the consulting physician say in consultation, in the presence of the patient, is inadmissible.
    8" Same.
    The fact that they did not agree upon the disease will not permit the confidential relation between physician and patient to be rendered nugatory.
    Appeal from a judgment entered upon a verdict and from an order denying a motion for a new trial.
    
      William Vanamee, for app’lt; William F„ O’Neil, for resp’t.
   Barnard, P. J.

There is no uncertainty in the proof as to the defendant’s negligence causing the accident which injured the plaintiff, nor is there any doubt as to the fact that the plaintiff is free from all negligence, which contributed to her injury. She was a passenger on the defendant’s train and saw an approaching engine of the defendant’s coming upon the same track. She jumped from the car just before the crash of the collision and was hurt in her fall. The extent of the injury is disputed. The plaintiff states that she is thirty-three years of age; that before the accident she was a healthy, rugged woman, the mother of two children; one born after the accident. The injury was received the 16th of November, 1891, and up to the trial in June, 1898, she had been unable to do any work. In this statement of her injury, the plaintiff is supported by her husband. Proof was given tending to show a permanent injury of the spine, caused by the concussion from the fall, and that she was growing worse. There was proof given by the defendant tending to show that the plaintiff at and soon after the accident, said she was not hurt, and by those who saw her get off from the cars, that she did not fall, but landed upon her feet and ran across to a store. Proof was also given by the defendant tending to show that the plaintiff was not in good health before the accident.

The defendant sought to prove that the plaintiff was riding on a pass. Her brother was a brakeman on the train upon which plaintiff was traveling. She had no pass; had money to pay her fare, but no one asked her for it. She says that there was no arrangement whatever that she was to travel on a pass. She purchased no ticket, and referred the conductor to her brother George (the brakeman), and when she attempted to testify as to what her brother said about it on the day before, she was ■stopped. This proof is not sufficient to reverse a verdict of the jury based upon the fact that she had no pass and was a regular passenger.

The testimony of Dr. Dé Kay was properly rejected. He was. called in, professionally, as consulting physician. What either said in consultation in the presence of the plaintiff, is inadmissible. Renihan v. Dennin, 103 N. Y., 573; 4 St. Rep., 261.

They did not agree upon the disease and this fact will not permit the confidential relation between physician and patient to be rendered nugatory. The defendant asked the regular physician, Payne, if Dr. DeKay did not say the plaintiff’s injury was intercostal neuralgia, and he said he did. Ho case, for what is known as impeaching evidence, is made. The damages,' $3,500, are not excessive, if the jury believed the testimony of the plaintiff and her husband.

The judgment and order denying a new trial should be affirmed with costs.  