Opinion
January, 1906.
William E. Weaver, for appellant.
John J. Sullivan, for respondent.
This is one of the ordinary actions to recover for personal injuries sustained by the plaintiff through the alleged negligence of the defendant. Upon the trial, the physician who attended the plaintiff and dressed the wounds received by her testified with considerable certainty as to the condition of the plaintiff's head, but stated that he was unable to say that such injuries were "likely" to be permanent. The following question was then asked him: "If the witness testified at this present time, which is four months past the time of receiving the injury that she still has spells, when her head is turned around she feels dizziness, is it your opinion as a physician, that this is apt to be permanent?" This was objected to, the objection was overruled and the witness answered: "The tendency would be that some portion of it would remain." A motion to strike out this answer was denied. This was error. The answer, viewed in the light of the physician's previous testimony, was manifestly speculative and indefinite and was not followed by any testimony showing, or tending to show, what portion of the trouble complained of as being in the plaintiff's head would remain, nor was it shown that he could state with reasonable certainty that any portion of it would be permanent. See Raynor v. Met. St. Ry. Co., 106 A.D. 449; Boland v. N.Y. City Ry. Co., 48 Misc. 523. What effect the admission of such improper evidence may have had upon the jury, it is impossible to determine and the judgment must be reversed.
SCOTT and BLANCHARD, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.