
    Lafayette Cole, Resp’t, v. Fall Brook Coal Company, Appl’t.
    
      (Supreme, Court, General, Term, Fifth Department
    
    
      Filed June 21, 1895)
    
    1. Trial — Improper-statement by- counsel^-'When cured.
    The effect of an improper statement by-counsel is-obviated, where the-court calls attention to,its impropriety and,directs .the jury to-disregard; it,
    3. Evidence — Expert.
    In. actions for personal injuries, physicians may. be called, asexperts, toi testify to matters-involving-learning and skill-in tbe science- of medicine- and surgery, which beat: upon the, nature and, extent, of the injuries complained" of. . '
    3. Same:
    The expert questions were. held not-to be subject'to the objection that they called for conclusions not1 embracing matters of science or-skill-peculiarly-within the knowl)edge,of.the. witnesses:,
    4. Deposition — Physical Examination-,
    The court cannot direct, in an- action for personal- injuries, a physical examination, of: the plaintiff without his consent,
    5. Appeal — Evidence.
    The fact that two juries have found for the plaintiff-and that, the trial, court.denied defendant’s motion for a.new- trial,.are circumstances entitled, to some weight in deciding the, action of the. appellate court, upon.thequesti'on, whether there is evidence to sustain the verdict.
    Appeal from a judgment, in favor of plaintiff; and from- an order denying a motion for a new trial-,' made on a. ease and exceptions, and certain affidavits:
    
      Gabriel L. Smith, for app’lt; Charlies.: Marvin, for resp’t.
   Werner, J.

— The plhintiff'-was. on--the 9th day-, of November,,

1887, employed by the, defendant as: a brakeman. On, t-hjat, day, while engaged in coupling cars-, be was- caught between- the- rear end of the tender and the front end -' of a gondola ear-, and sustained seri.o.us injuries. The alleged negligence - of the.defendant,: upon which-this action, i’s brought, consisted i-n the-, use .of a,, cam from- which the -left-hand bumper was gone, thus permitting; the, cars between which plaintiff was required to-go in, making, couplings to come so closely.together as to, crush him between-thcisi,11s.. The condition- of tbe car. in- question,- the manner in- which the accident occurred, and the. nature and extent of plaintiff’s alleged i-n-juries, were all contested questions, submitted to-the. jury upon conflicting testimony. The defendant moved- for a new- trial upon, a case and exception's, and upon-an affidavit alleging misconduct on the part of plaintiff’s counsel during the trial, by which defendant’s rights were prejudiced. The motion was denied.

Before proceeding to consider the exceptions -upon which the appellant relies for a reversal of the judgment herein, we will briefly discuss the alleged misconduct of plaintiff's counsel. It -consisted in a statement to the jury by plaintiff’s counsel, in summing up, that upon the former trial the plaintiff had recovered a verdict for $8,000. This incident was brought .to the attention of the court by a note from defendant’s counsel. The presiding justice, in the course of his charge to the jury, called attention to the matter in the following language :

“The fact has crept out here, improperly, that upon the former trial the plaintiff recovered a' verdict, and the amount of that verdict has been stated to you. But the fact that the plaintiff recovered in a former trial of this action is no reason why he should recover in this action. The fact that he recovered a certain amount on the former trial has nothing to do with the amount he should recover upon this trial, if he recovers at all.” “You are aware, I take it, that the evidence which has been' furnished on either side of this trial varies very materially 'from that which was furnished upon the former trial. Witnesses have been sworn here who were not sworn there ; ■ testimony has been given here which was not given then ; and you are to dispose of this case upon the evidence which has been furnished here,- and upon that evidence alone, and not upon any evidence furnished on the-former trial, save whei’e that evidence has been read before you with a view of contradicting evidence which has been given here.”

The statement of plaintiff’s counsel as to the action of-the jury upon the former trial was manifestly improper, but it -was eliminated from the case by the very explicit charge of the court, and the error which might have been committed in permitting it to pass unchallenged was thus prevented. In Chesebrough v. Conover, 140 N. Y. 388; 55 St. Rep. 728, this identical question was discussed, in the following language:

“Where-a case has-been once tried,-it is not generally possible to keep from the jury the result of the former trial; and it would be an embarrassing and mischievous rule to- lay down that, if such result be brought out by statement or evidence, a fatal and incurable error- has been committed, and, although the jury may be instructed to wholly disregard it, yet the vice is not eliminated, and the judgment-upon the second trial is necessarily to be reversed. * * * It is like the case where, upon the trial of an action, the trial judge erroneously receives objectionable -and damaging evidence, which he subsequently strikes out, and directs the-jury to disregard. In such cases w-e have held that the vice is eliminated, and that theoretically, at least, the erroneous evidence found no lodgment in the minds of the jury.”

To the same effect is Brusie v. Peek Bros. & Co., 42 St. Rep. 803.

Defendant.contends-that error wasuommitted in permitting physicians who were-called as experts to answer certain hypothetical questions, the length of which precludes their reproduction in full here. An examination of these questions convinces us that none of the rulings of the court upon this subject transcended the now well-settled rules relating to the subject of expert testimony in actions for damages for personal injuries. The plaintiff and other witnesses had testified as to the plaintiff’s condition, and, upon the assumption that plaintiff’s evidence was to be taken as true, certain facts bearing upon his condition were established. Whether this evidence was to be believed or not, and whether plaintiff’s condition was such as he claims, were questions for the examination of the jury, and it was plaintiff’s right to fortify and corroborate that evidence by all proper means. Dr. Pratt, one of plaintiff’s experts, was asked to “describe the symptoms which would ordinarily and necessarily accompany an injury such as you found this man suffering under.” Dr. Webb, another of plaintiff’s experts, after hearing the hypothetical statement of facts which plaintiff claimed to have established, was asked this question : “Taking all these symptoms into consideration, are they the natural and ordinary symptoms that would flow from an accident of this character ?” Dr. Jonas Jacobs was asked, “Are able to state, from your observation of cases of this character, founded upon the information which you obtained from the examination of this man, what some of the ordinary and usual symptoms are, accompanying an injury of this character ?” Dr. Henry Flood was asked, “State what are the ordinary and usual symptoms from an injury in that locality, * * * from such an injury as you" found this plaintiff suffering from.” The rule is too firmly established to require the citation of authorities, that, in actions for personal injuries, physicians may be called, as experts, to testify to matters involving learning and skill in the science of medicine and surgery, which bear upon the nature and extent of the injuries complained of; and the only question we are called upon to determine is whether the questions were proper in form, and the answers thereto were within the scope of the inquiry, as to which expert testimony was properly admissible. Did these questions call for collusions of fact not embracing subjects of science or skill peculiarly within the knowledge of the witnesses to whom they were addressed ? The answer to this inquiry may be found in the language of this court in Schwander v. Birge, 46 Hun, 66 ; 10 St. Rep. 802 :

“ The governing rule deduced from the cases permitting the opinions of witnesses is that the subject must be one of science or skill, or one of which observation and experience have given the opportunity and means of knowledge, which exists in reasons, rather than descriptive facts, and therefore cannot be intelligently communicated to others, not familiar with the subject, so as to possess them with a full understanding of it.”

The forceful application of this language to the case at bar can best be illustrated by a brief consideration of the facts of the case ij. which it was employed. Schwander’s intestate was killed in a fire at Dirge’s factory, where he was employed. It was sought to-charge defendants with negligence, in failing to provide suitable means of escape from, the building for their employes. Defendants’ superintendent, after having testified to the existing conditions, was asked the question, “ Was that, in your j udgment, a proper and sufficient mode of access and egress from the building, under any circumstances?” This was a question requiring the witness to draw a conclusion from a purely descriptive fact, and permitting him to answer, the province of the jury was clearly invaded. The present case is one, however, in which the learning and skill of witnesses, based upon their knowledge and experience, enabled them to testify to matters not within the knowledge of ordinary men, and not capable of elucidation by a mere statement of facts showing the manner of the accident and the plaintiff’s present condition. Let us suppose that the plaintiff’s case had rested solely upon the evidence of himself and other nonexpert witnesses. The jury might have concluded that plaintiff’s condition resulted from the accident. But this conclusion, instead of being based upon evidence showing with reasonable certainty that cause and effect were considered in their logical relation to each other, would merely have given the jury an opportunity to supply by surmise and conjecture that which should have been furnished by legal evidence. It was necessary and proper for the plaintiff to show that his condition at the trial, as well as his probable future condition, were such as might, and probably would, result from such an accident as had been described, and that no intervening cause was responsible therefor. The question addressed to the plaintiff’s experts herein were not open to the objections which resulted irt the reversal of Page v. Mayor, etc., 57 Hun, 124; 32 St. Rep. 563. In that case the physician had heard only a portion of the evidence of the plaintiff. He was asked the following questions:

“ Take such a fall as he describes here, resulting from a collision of two cars, and of the symptoms following that fall, he having been theretofore a sound and healthy man. Can you state with reasonable certainty that the consequences that have flowed are natural and usual. ”

That question was not only based upon an incomplete hypotheis,, but it called upon the witness to say that the “ consequences that have flowed are natural and usual.” There is a material difference between that question and those here under consideration. In that case the “consequences” flowing from the accident are testified to In this case the evidence deals with symptoms which are “natural and ordinary” in connection witn the injury stated. The “consequences” of an injury are to be determined by the jury, but the symptoms which may aid the jury in deciding what the consequences are may properly be testified to by a qualified expert. But, even upon the assumption that there is no essential difference between the question in Page v. Mayor, etc., supra, and the questions here, we are disposed to hold that the rules which govern the admission of expert testimony in cases of this character have not been violated. In Turner v. Oily of Newburgh, 109 N. Y. 308 ; 15 St. Rep. 93, the court say:

“We see no objection to the expression of opinions by competent medical experts upon an ascertained condition of suffering or bad health, as to whether that condition might have been caused by, 'or be the result of, a previous injury. It was for .the.jury-to -decide whether the injury of suffering of which plaintiff complained were the direct result of the accident, and, to that end, it was proper "to give evidence .tending to show, in 'the opinion of witnesses •competent to speak • upon the point, that they were the result of plaintiff’s fall.”

T he long line of cases exhaustively and learnedly discussed by .appellant’s counsel, in which the admissibility of expert testimony is considered, were questions of mechanical construction, and kindred subjects are involved, having.no application to cases like this. The question whether the trial court erred in-refusing to make an order compelling the plaintiff to submit to a physical examination, at the instance of defendant, or, in default thereof, to have his evidence stricken out, need not be discussed at length. The case of McQuigan v. D., L. & W. Railroad Co., 129 N. Y. 50; 41 St. Rep. 382, sets at rest any doubt as to whether the courts had power to make such order prior to the amendments to section 873 Code Civil Proc., in.1893 and in 1894. It is true, the statutes and the. case above referred to deal with the question of power to compel sumbission to such an examination before trial. Here the application was made upon the trial. But the question of power, in the absence of statutory authority, rests upon the same principle in both cases, In some states this power has been held to exist, and has been exercised; but the courts of this state .and the supreme couj’t of the United States (Railway Co. v. Botsford, 141 U. S. 250), have held that neither the common law, nor the inherent power-of courts in the exercise of their jurisdiction, warrants or authorizes a physical examination, of a party without his consent. What is referred to by plaintiff’s counsel as an exception to the rule is really not within the rule. When a party, in open court, voluntarily submits his’ person to inspection for his own benefit, he confers upon the opposing party the right to a further inspection, precisely the same as a party who becomes a" witness must submit-to cross-examination. But the counsel for the appellant ingeniously argues that, even if- the court .was correct in ruling that it had no power to make the order asked for, -yet since the power was conferred by express statutory enactment after the trial, and before the entry of judgment, the evidence which he could have produced if the examination asked for had been ordered should be treated as newly-discovered evidence, and ■ upon that ground-a new trial should be ordered. We.cannot concur in this unique proposition. We have no means of knowing what evidence would have: been produced if the physical examination had been made. Experts were called for the defendant, and it is impossible to say that their evidence would have been different after such examination than it was without it. However, that may be, it cannot be said that evidence produced under’ such circumstances can be called “newly-discovered evidence,” within the legal meaning or that phrase.

The case-was,properly submitted to.the jury. Every material

question.-of' fact was contested. -The apparent preponderance-in volume of the testimony offered-by the defendant does not authorize us to reverse the finding of the jury. It was their province to decide upon the conflicting evidence, and it cannot be said that the testimony does not support the verdict. The fact that two juries have found for the plaintiff, and that the trial court denied defendant’s motion for a new trial, are circumstances entitled’to some weight, in deciding the action of the appellate court upon the question whether there is evidence to sustain the verdict. Ferguson v. Gill, 74 Hun, 566; 57 St. Rep. 213. The appellate tribunal is not warranted in reversing a judgment, so far as it is based upon questions of fact, upon the sole ground that in its opinion a different conclusion should have been reached upon conflicting evidence. Baird v. Mayor, etc., 96 N. Y. 567.

There are numerous exceptions in the case which have not been specifically discussed, because we believe them to be within the rules above considered, A careful examination of the record leads us to the conclusion that no material error was committed upon the trial which was prejudicial to the defendant.

These views necessarily lead us to hold that defendant’s motion for a new trial was properly denied, and that the judgment of the court below must be affirmed.

So ordered.

All concur.  