
    James Kane, Appellant, v. Rochester Railway Company, Respondent.
    
      Trial—presumption from, the failure of a pa/rty to intemgate his own witness, homing peculiar knowledge of a subject, in respect thereto.
    
    Where, on the trial of an action to recover damages for personal injuries, the plaintiff claims to have sustained an injury to the fingers and wrist of his left hand, and the expert witnesses agree that there were no objective symptoms of any injury to the fingers or wrist and that, if there was any difficulty with the bones ot those members, an X-ray examination would disclose it, the intentional omission of the plaintiff to interrogate a physician called by him, and who had made an X-ray examination of his fingers and wrist, concerning the results of such examination, entitles the defendant to have the jury charged that they might assume that the physician’s testimony, if given, would have been adverse to the plaintiff.
    Appeal by the plaintiff, James Kane, from an order of the Supreme Court, made at the Monroe Trial Term and entered in the office of the clerk of the county of Monroe on the 5th day of December, 1901, granting the defendant’s motion for a new trial made upon the minutes of the court, and setting aside the verdict of a jury in favor of the plaintiff for $1,800.
    The action was commenced on the 31st day of October, 1899, to recover damages for injuries alleged to have been sustained by the plaintiff on the 25th day of Juné, 1899, by coming in collision with one of defendant’s cars at Franklin street, where it crosses defendant’s tracks at Clinton avenue in the city of Rochester, N.Y., alleged to have been caúsed solely through the negligence of the defendant.
    
      Charles Roe, for the appellant.
    
      Charles J. Bissell, for the respondent.
   McLennan, J.:

The order appealed from was granted by the learned trial justice upon the ground, as appears by his opinion, that error was committed in refusing to charge the jury as requested by defendant’s counsel, which request was substantially as follows: It appearing that

Dr. Weigel made an X-ray examination of plaintiff’s finger's and wrist, at the request of the plaintiff, and the plaintiff having omitted to' ask Dr. Weigel, when called to the witness stand by him, what he discovered from such examination, the jury have the right to assume that Dr. Weigel’s testimony, if given, would have been adverse to the plaintiff upon that point.

At about ten-thirty in tlre.evening of the 25th day of June, 1899, the plaintiff and one Hanify were riding with one Johnson in a wagon drawn by one horse, which was being driven by Johnson along Franklin street in the city of Rochester, N. Y. In crossing Clinton avenue one of defendant’s cars collided with the wagon, overturned it and threw the occupants out, and the plaintiff alleges that he thereby sustained serious injury. He testified, or gave evidence tending to show, that his side was injured in such manner that-a hernia resulted; that three fingers of the left hand and two of the right were put out of joint, and that his wrist was seriously injured, constantly pained and troubled him, and was in such condition at the time of the trial, two years after the accident, that he had to keep a leather bandage constantly around it when at work, stating that he could not use the wrist in his work without such bandage, which was exhibited to the jury. There was a sharp controversy between the medical experts, as is usual in such cases, as to whether ■or not any hernia existed, but remarkable as it may seem, they all ugreed that at the time of the trial there were no objective symptoms •of injury to the fingers or wrist that would account for the weakness •and pain complained of and testified to by the plaintiff, and that if ■ there was any difficulty with the bones an X-ray examination would •disclose it.

Upon the cross-examination of the plaintiff it appeared that Dr. Weigel made an X-ray examination of the plaintiff’s wrist and fingers, and Dr. Weigel, who was called as a witness by the plaintiff, •testified upon his cross-examination that he did make such examination, and that he took X-ray photographs of the same, and that he "then had such photographs or the plates in his possession; that he made the examination and took the photographs in December, 1899, -or January, 1900. Plaintiff’s counsel did not ask the plaintiff or Dr. Weigel what the X-ray examination disclosed as to the condition •of the fingers or wrist, nor offer to produce the photographs showing their condition. The omission so to do was the basis of the .request to charge made by defendant’s counsel, and because of "its refusal, to which an exception was duly taken, the order appealed from was made. Whether or not the refusal by the learned trial Justice to charge as requested was reversible error, presents the only -question which need be considered upon this appeal.

Clearly, the l-pquest had reference to a material question of fact. ‘The nature and extent of plaintiff’s injuries were sharply contested. ‘The character of the evidence given in respect to the injury to plaintiff’s side was such as to leave it entirely problematical as to . whether" or not he had a hernia. One or two physicians testified "that he unquestionably had, and another, eminent in his profession, testified positively that he had not, so that it is impossible to say what part of the verdict,- if any, was awarded by the jury on account •of the injury to the side, or that substantially all of it was not •awarded because of the injury which the plaintiff claimed resulted " to his fingers and wrist. Under those circumstances, if the defendant was entitled, as matter of law, to have the jury instructed that they had a right to assume that the bones of the fingers or wrist were in their normal condition, from the fact that the physician called by the plaintiff, who had examined them with the X-rays, did not disclose .the result of such examination, it cannot be said that the refusal to charge as requested was not prejudicial to the defendant.

Was the defendant entitled to have the jury charged as requested ? Fair play and common sense would certainly dictate an affirmative answer. Facts'were within the knowledge of the witness called by the plaintiff for the purpose of establishing the seriousness of the injury which he sustained, which concededly would demonstrate whether such injury was as serious as, claimed or not. Hnder those circumstances, plaintiff ought not to be permitted to withhold such information from the jury. It is very natural to suppose that if such information would have tended to corroborate plaintiff’s claim it would have been called out by him, and the conclusion is almost irresistible that he omitted so to do because he knew the information possessed by the physician as the result of the examination made by him would be hurtful to his claim, if communicated to the jury. , .

It is no answer to the proposition that the defendant called out the fact that the X-ray examination had been made, and might have asked what the result of such examination was. The defendant was not called upon to take the chances of an answer by a hostile witness. The question whether or not the plaintiff’s fingers and wrist were seriously and permanently injured was evidently regarded as important, and one which would materially affept the plaintiff’s right to recover,’ or at least the amount of the verdict, and early in the course of the trial, before Dr. Weigel who had made the X-ray examination had been called by the plaintiff and sworn, it appeared that such examination had been made by him; and upon his cross-examination the plaintiff’s attention was again called to the fact, so that the omission to inquire as to what the X-ray examination disclosed cannot be attributed to oversight or mistake.

The. precise question involved was decided by this court in Milliman v. Rochester Railway Company (3 App. Div. 109). That was an action brought to recover damages for injuries sustained by the plaintiff, who was riding with his daughter along one of the streets of the city, which was also occupied by defendant’s railroad. One of the cars, which was following the phaeton, collided with it and the injury resulted. The important issue litigated was whether the collision occurred immediately after the horse entered upon the track, or whether the car followed the phaeton for a distance of 125 feet or more, overtook and ran it down. The plaintiff’s daughter, who was called as a witness by him and who, as appeared by her testimony, had opportunity to know the relative position of the horse and car when the horse entered-upon the track, was not interrogated by counsel for either litigant in regard to such position. In his charge the learned trial justice called the attention of the jury to the fact that the daughter had not been examined upon this issue, although she had the same opportunity of knowing the facts as the plaintiff, and charged in substance that such omission might be taken into account by the jury in determining on which side the truth lay. Plaintiff’s counsel duly excepted to the charge, and upon appeal urged that it presented such error that the plaintiff’s motion for a new trial should have been granted. In considering the question Justice Follett, in-writing the opinion for the court, said: “ In case a litigant fails to produce a person known to be friendly to him and to his cause, who is so situated that he must have knowledge of the facts in issue, the jury is permitted to presume that the testimony of that person would not have been favorable to the party. (Kenyon v. Kenyon, 88 Hun, 211, and cases there cited; Thomp. on Tr. §§ 989, 1015; Taylor on Ev. [8th ed.] § 117.) * * * I think the rule is as applicable to a case in which a party fails to interrogate a friendly witness, so situated as to be presumed to have knowledge of the existence or non-existence of the vital facts in issue, as it is to the case of a failure to produce such a witness. Indeed, I think the omission to interrogate a friendly witness in respect to facts presumably within his knowledge, is more significant than the failure to call such a person as a witness, and that the presumption that the testimony would not have been favorable to the party’s case is stronger than the one which arises from the failure to produce such a person as a witness.”

The learned counsel for the plaintiff in the case at- bar concedes, as did the plaintiff’s counsel in the Millimam, case, that - the rule as stated applies to a party who fails to produce a friendly witness ■ who has knowledge of facts material to an important issue. The cases of Kenyon v. Kenyon .(88 Hun, 211); Sherlock v. German-American Insurance Co. (21 App. Div. 18); Carpenter v. Pennsylvania Railroad Co. (13 id. 328) fully sustain the correctness of that proposition, but plaintiff’s counsel contends, as was urged in the Milliman case, that it does not apply to a party wlio fails to interrogate a friendly witness, called and sworn by him, as to-' facts material to an important issue, although known to be within the knowledge-of such witness.

There is no reason for such a distinction, and if made it would only enable a party to avoid the effect of the rule adverted to, by calling a friendly witness who had knowledge of facts pertinent to a material issue, and by compelling his adversary to take the hazard of interrogating the witness as to such facts.

The defendant was not bound to prove his defense by plaintiff’s expert, physician, who at plaintiff’s request made a careful examination of the injured parts to ascertain the extent of their injury, and the burden was upon the plaintiff not' only to produce him, but also to interrogate him as to facts within his knowledge relating to the important issue or expose himself to the hazard of unfavorable inferences.

A party seeking to recover for serious injury to his side and wrist ought not to be permitted to call as a witness an expert physician, who, at his request, examined and learned the conditions of both, and interrogate him only as to the condition of one, without exposing himself to the hazard of having the jury infer that if the witness had been asked as to the condition of the other his answer would have been unfavorable to the party calling such witness.

The rule laid down in the Milliman Case (supra) is logical. Its application will tend to prevent the suppression of the truth in the trial of causes and .should be adhered to and followed. -

It follows that the order appealed from should be affirmed, with costs.

Adams, P. J., Spring, Williams and Hiscock, JJ., concurred.

Order affirmed, with costs, 
      
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