
    Jeremiah Murphy, Respondent, v. The New York New Haven and Hartford Railroad Company, Appellant.
    Second Department,
    March 10, 1916.
    Hegligenee — action for hernias resulting from electric shock —■ evidence — witnesses — waiver of privilege.
    In an action against a railroad company,' it appeared that the plaintiff, defendant’s servant, was injured while working on a dead wire which, by negligence imputable to the defendant, became charged with an electric current. The plaintiff received several burns, and at a later period a hernia or rupture appeared on the right side, for which he submitted to an operation, but later another hernia appeared on the left side. There was a conflict of opinion between the experts for the plaintiff and for the defendant as to the probability of the electric shock having caused the hernias. Evidence examined, and Held, sufficient to sustain a finding that the hernias resulted from the accident.
    The fact that the defendant compelled the plaintiff to testify as to the pain in his abdomen by recalling him to the witness stand and over objection of his attorney exacted a statement that he had told the doctor at the hospital how long he had had the pain and when it first started, did not constitute a waiver of privilege, so as to entitle the defendant to examine the doctor from the hospital relative to plaintiff’s statement.
    Appeal by the defendant, The New York, New Haven and Hartford Eailroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk
    
      of the county of Westchester on the 7th day of April, 1915, upon the verdict of a jury for $7,500; also from an order entered in said clerk’s office on the 13th day of April, 1915, denying defendant’s motion for a new trial made upon the minutes, and also from an order entered in said clerk’s office on the 20th day of March, 1915, denying its motion to set aside the verdict on the ground that it was excessive.
    
      James W. Carpenter [Charles M. Sheafe, Jr., with him on the brief], for the appellant.
    
      Thomas J. O’Neill [Leonard F. Fish with him on the brief], for the respondent.
   Thomas, J.:

The plaintiff, defendant’s servant, was injured while working on a dead wire which, by negligence imputable to the defendant, became charged with an electric current. The plaintiff received several burns, quite inconsiderable in severity. At a later period a hernia appeared on the right side, for which he submitted to a successful operation, but thereupon a hernia appeared on the left side. The verdict for $7,500 is excessive, unless the plaintiff is entitled to recovery for the hernia on one or both sides. There is conflict of opinions between the plaintiff’s expert and the defendant’s two experts as to the probability of the accident causing the hernia. The plaintiff relied for medical opinion entirely upon Dr. Churchill, who, shortly before the trial, made an examination for the purpose of testifying. He was asked an hypothetical question, which contains the assumption that the plaintiff before the accident was in good health, and “never experienced any stomach trouble, or pain in the stomach, or in the region of the abdomen.” Dr. Churchill answered upon the facts assumed that the injury received on the day in question was an efficient and producing cause of both ruptures. He later said: “Q. That is, the burns—the burns and shock of the electrical current was sufficient, you say, to cause the rupture % A. No, not the burns or the shock, but the sudden contraction of the muscles that takes place as the result of the electric current, the sudden contraction of all the abdominal muscles, causing an extra pressure upon the abdominal contents, and causing this bulging out of this weakened point. Q. That alone would be sufficient to produce - rupture ? A. There is another element that comes into that, it is probably in every case of rupture, there is a weakness in the abdominal wall, that accounts for why some people have ruptures and others do not through the same violent strain. * * * Q. What do you assume here, that he had weakness in the walls ? A. He probably had weak spots, spots where there was inherent weakness in the abdominal wall. Q. Inherent weakness as the result of this electrical current ? A. No, it may have been congenital.” The defendant’s motion to strike out the doctor’s answer was denied. The appellant’s point is, that the question assumes that the man had been in good health, and that the doctor answered it upon an assumption resting on no proven facts, that he probably had “weak spots, spots where there was inherent weakness in the abdominal wall.” It is noticeable that the plaintiff’s counsel, following the doctor’s answer, desired to show that the injurious agent would cause this weakness of the abdominal wall, even if there was no inherent defect in it, hut that the evidence was excluded upon the defendant’s objection. Therefore, the defendant may not urge that the case is destitute of evidence that the contraction caused by the electric current would directly cause such weakness. However, the defendant’s position is untenable. So far as the man knew, he was in good health. He did not know, he had never experienced, that must mean consciously know, stomach trouble, pain in his stomach or in the region of the abdomen. The doctor ascribes to the plaintiff a weakness in the abdominal walls which made the injury an effective cause of the hernia in this instance, because, as he says, “Only the best authorities explain ruptures on that ground, in all cases of rupture there is some weakness in the abdominal wall, where one man would get ruptured on certain muscular efforts another man won’t.” Hence, when he answered that the accident was a competent cause for hernia, he did so because experience had shown that probably in every case of rupture there is a weakness of the abdominal wall. In other words, the weakness is a characteristic antecedent condition where hernia appears. Therefore, it was not necessary to show preliminarily that there was such weakness. Indeed, that might be beyond proof in a given instance. But as it is known that such weakness necessarily predisposes to all ruptures, and as it was so testified, the witness was not only justified in taking that into consideration, but he could not disregard it. But, even so, there is a very sharp attack upon Churchill’s main conclusion by the defendant’s experts, Dr. Berges and Dr. Coley. Dr. Berges, upon the assumed state of facts, was asked whether he could say with reasonable certainty whether such an injury as the plaintiff received, or such a shock as he received from the electric current, could be the competent producing cause of hernia. He answered, “I could not.” His next answer is, “I say I cannot say that that would be the cause.” When further asked whether the burn and shock would be a sufficient cause, he answered, “I don’t think so.” Then follows the answer: “To the best of my belief, I do not. Q. That is your opinion, is it? A. That is my opinion, yes.” And he finally gives the opinion that the shock was not the cause of the hernia. But he testified that the usual cause for hernia developing is “ congenital weakness generally.” Upon cross-examination he finally stated: “Q. You admit then that either a large amount of electrical current that violently contracts the muscles and the tissues of the abdominal wall, and a great relaxation might produce hernia ? * * * A. I admit that it might.” But his testimony also is that contraction could not cause it, as that would thicken the abdominal walls, and tend to give them strength rather than to lend them weakness. But he was led to the last answer quoted by the fact that after contraction there is a relaxation which might produce a hernia. It must be considered that Dr. Berges gives the opinion that the hernia could not result from the cause asserted, and we must rely upon probabilities and not possibilities. And yet his statement of the possibility indicates that Dr. Churchill in his answer was not without the realms of experience, although he may have exceeded probability in his conclusion. Dr. Coley answered the defendant’s hypothetical question shortly and decisively to the effect that the accident could not be a competent cause for the hernia. The vital element of Dr. Coley’s thought is that hernia depends on congenital weakness. That confirms Dr. Churchill that there is an antecedent congenital weakness. Dr. Coley’s statement is so relevant to the question under discussion that I quote from his testimony: “Q. What is the cause of hernia, Doctor ? A. Hernia is a disease rather than an accident, due to congenital imperfections in the abdominal wall, the most important one being a preformed sac or arch in the peritoneum, which exists at birth, and at some later time in life received the contents of the bowel, which is forced into this arch, but never by a single strain, but by a continuation, multiple strains, due to lifting, or any ordinary increase of intra-abdominal strain of daily life, such as straining at the stool, coughing, or a hundred other things, the main point being that it is gradual in its onset, and practically never occurs as the result of a single strain, or increased intra-abdominal force.” From this it appears that Dr. Churchill was correct in his answer to the hypothetical question, as the congenital weakness is always present in case of hernia. Therefore, such fact must be taken into account in answering the hypothetical question. In this connection the evidence of what happened to the plaintiff may be noted. Plaintiff’s own statement is that he became unconscious. But Phelan, another workman, heard the call and testified: “I saw him hanging there, I couldn’t do anything for him.” He says he was shaking, like this (indicating) and I heard the crackling noise in the wire of the juice going in. ” He estimates that such condition continued also two or three minutes. Then, as he said, when the current was turned off, “ the static stopped and Murphy fell off into a safety.” The plaintiff stated that shortly after the accident he felt severe pains in the lower part of his stomach that grew worse, and that finally he noticed a swelling below, which increased until he went to the hospital for operation on June ninth. He was injured on January 25, 1913, and worked for the defendant full time with the exception of two days until March seventeenth, stopping just before the strike on March twenty-first. He says that, he felt the pains in the abdomen about three weeks after the accident, and that the pain was increasing until the time of the operation. I conclude that the jury was justified in finding that the plaintiff’s hernias came from the accident, and that the finding is not against the weight of the evidence. There is another question. The defendant sought, hut was not permitted, to examine the doctor from the hospital as to plaintiff’s statement relative to the development of the pain in the abdomen. The defendant urges that the privilege had been waived because the plaintiff gave testimony on that subject. But the defendant compelled him to do it by recalling him to the witness stand, and over the objection of plaintiff’s attorney exacted the statement that he had told the doctor at the hospital how long he had had the pain and when it first started. Having thus forcibly opened the plaintiff’s mouth he asserted a waiver of the privilege and tried to examine the doctor. By such rule the privilege could never remain inviolate.

The judgment and orders should be affirmed, with costs.

Present —Jenks, P. J., Thomas, Carr, Stapleton and Putnam, JJ.

Judgment and orders unanimously affirmed, with costs.  