
    William Green, an Infant, by Edward J. Green, his Guardian ad Litem, Respondent, v. Metropolitan Street Railway Company, Appellant.
    
      Negligence — injury to a person caught, through his own neglect, on the fender of a cwr — effect of the railroad company’s not promptly stopping the car—a communication to a hospital surgeon is privileged.
    
    In an action to recover damages for personal injuries sustained by the plaintiff in consequence of having been run over by one of the defendant's street cars evidence given to the effect that he was struck by the car probably because of his own contributory negligence, but that after he was struck, and before he was run over, his body was resting against or upon the fencer of the car; that the car traveled a distance of nearly a hundred feet before it stopped; that it could have been stopped within twenty-five or thirty feet, and that by reason of the jolting of the car in its progress the plaintiff was thrown from the fender and run over, is sufficient to sustain a recovery against the railroad company.
    Ingraham, J., dissented.
    A surgeon connected with a hospital, who, on the night of the accident, responded to an ambulance call and took the plaintiff in an ambulance to the hospital, is incompetent, under section 834 of the Code of Civil Procedure, to testify to a statement made by the plaintiff as to the manner in which the accident occurred, where it appears that such statement was made in reply to questions asked by the surgeon for the purpose of making a hospital record of the case. Ingraham, J., dissented.
    Appeal by the defendant, the Metropolitan Street 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 New York on the 18th day of February, 1901, upon the verdict of a jury for §5,000, and also from an order entered in said clerk’s office on the 28th day of February, 1901, denying the defendant’s motion for a new trial made upon the minutes.
    
      Ohwrles F. Brown, for the appellant.
    
      WilUam M. K. Oloott, for the respondent.
   Patterson, J.:

This action has been tried three times. The first trial resulted in a disagreement of the jury and the second in a dismissal of the complaint. On appeal we reversed the judgment entered upon the dismissal of the complaint, and upon the third trial a verdict was found for the plaintiff. From the judgment entered upon that verdict and from an order denying a motion for a new trial this appeal is taken.

Upon the merits of the case we are not able to find any substantial difference in the record now before us and that under consideration on the former appeal in the evidence given to sustain the plaintiff’s contention on the subject of the defendant’s negligence. On the second trial, as upon the one now under review, it was shown that the plaintiff sustained injuries by being run over by a cable car operated by the defendant. It also appears now, as it did then, that the plaintiff was struck by the car probably through his own contributory negligence; but there is also evidence tending to show that after the plaintiff was.struck, and before he was run over, his body was resting against or upon the fender of the car; that the car traveled a distance estimated at nearly a hundred feet before it stopped; that it could have been stopped within twenty-five or thirty-five feet, and that by reason of the jolting of the car in its progress the plaintiff was thrown from the fender and run over. The testimony on behalf of the plaintiff on this subject of the distance traversed by the car after its first contact with the plaintiff is flatly contradicted, but upon that conflict of evidence the jury, under proper instructions, have found for the plaintiff. There is undoubtedly evidence to support the verdict, and under the rule of law as laid down on the former appeal (Green v. Met. St. R. Co., 42 App. Div. 160) the judgment entered upon the verdict should stand. It cannot be said that there is no evidence to support the verdict, or that the account of the accident as given by the plaintiff involves an impossibility. It is true that the construction of the car and the situation of the fender would render it seemingly unlikely that after being struck the plaintiff’s body could have been caught upon this fender and remain . there for any length of time; but the evidence is that such was the fact — and although such a thing may never have occurred before within the experience of any one connected with the road, nevertheless, it cannot be pronounced impossible, in view of the evidence appearing in the record. The effect of the decision of this court on the former appeal is that it was negligence on the part of the defendants motorman to allow the car to run a distance of a hundred feet after the boy was struck, and we do not find, upon an examination of the whole case, that the decision on the previous appeal, upon the facts as they then appeared, is in conflict with what was held in Bittner v. Crosstown Ry. Co. (153 N. Y. 76) as to negligence consisting in the failure of the motorman to stop the car in less than a distance of a hundred feet from the place at which the plaintiff was first struck.

There is an exception in the case which requires consideration. Dr. Moorhead, an ambulance surgeon, was called as a witness by the defendant. He was connected with the J. Hood Wright Hospital, and on the night of ’ the occurrence of the accident to this pilaintiff, he responded to an ambulance call and took the plaintiff in an ambulance to the hospital. He testified that he had several conversations with the plaintiff, who was perfectly conscious and answered all his questions rationally. He inquired of the plaintiff how the accident occurred. The defendant’s counsel asked the witness to state what the plaintiff said, if anything, as to how the accident happened. This was objected to on the ground that it was a professional communication; that the witness was a physician and surgeon of the hospital and it was in the line of his duty to make these inquiries. The objection was sustained and the defendant excepted. It is now claimed that this ruling was erroneous. Section 834 of the Code of Civil Procedure provides that a person duly authorized to practice physic or surgery shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity. We think this evidence was properly excluded. In determining its admissibility, the burden was doubtless upon the plaintiff to show that the evidence was privileged. (People v. Koerner, 154 N. Y. 355.) It may not have been necessary that the surgeon, in order to treat the plaintiff, should obtain the information as to how the accident occurred, and it may well be said, from a medical standpoint, that it was not necessary for the surgeon to be informed of the details of the accident, but that information was necessary, upon the witness’ own statement, to enable him to do-some act as a surgeon, namely, to comply with the requirements of the hospital that he should ascertain how the accident occurred in order that he might enter a history of the case upon the hooks of the hospital. The information he obtained from the plaintiff was distinctly for the purpose of making a hospital record. The witness said : It was my duty, as surgeon, to take statements for the purpose of prescribing for patients and giving them aid, and having it entered i/n the hooks of the instibwbion ¡ * * * the rules of the J. Hood Wright Hospital require us to ask questions for the purpose of putting them on the books of the hospital, to find out how the accident occurred, the circumstances, and I report them, and they are entered on the records of the institution.”

The defendant’s counsel was, therefore, seeking to elicit information acquired by the witness in the line of his duty and to fulfill an obligation which devolved upon him in the line of his duty, and whatever may have been said by the plaintiff, therefore, cannot be regarded as a voluntary statement. Under such circumstances, whatever the plaintiff may have said concerning the manner in which the accident happened, cannot be regarded as other than a privileged communication, being made, as it was, to enable the surgeon to discharge his professional duty in connection with a hospital case.

The other exceptions do not require consideration.

The judgment and order appealed from should he affirmed, with costs.

Van Brunt, P. J., concurred; Laughlin, J., concurred in result; Ingraham, J., dissented.

Ingraham, J. (dissenting):

I do not concur in the affirmance of this judgment. It is conceded that the plaintiff’s negligence contributed to the accident by which the plaintiff was struck by the defendant’s car; but it is claimed that as the accident to which the plaintiff contributed culminated in landing him upon the fender of the car, from that moment a new relation existed between the parties, and any act or omission on the part of the defendant amounting to a lack of the care demanded by the situation, which resulted in injury to the plaintiff, is sufficient to charge the company with negligence. And that was the ground upon which the judgment was reversed on the former appeal. But an examination of the testimony upon this trial fails to show that after the accident which resulted in thus placing the plaintiff upon the fender, either the grip man of the car or any employee of the defendant had knowledge of the situation of the plaintiff upon the fender, or of any fact from which they could infer that the plaintiff was then in a position of danger. The fender upon which the plaintiff is alleged to have been caught after the car struck him was well under the car, back of the position occupied by the motorman, and there was nothing to show that the motorman had any reason to suppose that the plaintiff was in that position. Upon the former appeal it was treated as though there was a fender in front of the car, and in front of the motorman, where he could have seen the plaintiff and where it would have been his duty at once to stop the car. It now appears that the fender upon which the plaintiff alleges he was caught was under the body of the car, and in such a position that no one on the car could have seen that he had been caught in that position. To make the defendant guilty of negligence it must appear that those charged with the control of the car failed to exercise the care imposed upon them by the situation; and in the absence of any knowledge by the defendant’s employees that the plaintiff, after being struck by the car, was in a position from which a subsequent injury could be anticipated, 1 do not see that any negligence could be imputed to the defendant.

■I think the judgment should be reversed.

Judgment and order affirmed, with costs.  