Opinion
June 5, 1908.
William C. Beecher [ Clifford C. Roberts and Cortland Betts with him on the brief], for the appellant.
Michel Kirtland [ Mary Coleman with him on the brief], for the respondent.
I think that the judgment must be reversed because the plaintiff did not present a case to support the verdict of the jury that the defendant was negligent. The plaintiff was injured by the motor car of the defendant. The accident occurred in the roadway on the north side of the public place — Columbus Circle, near Fifty-ninth street in the borough of Manhattan of the city of New York. It was daylight, between 5 and 6 P.M. of May 22, 1905. The plaintiff, who is his sole witness as to the accident, testifies that upon leaving the curb he looked for possible perils; that he neither saw nor heard the motor and that he did not hear "any bell." Proceeding about 10 feet, he heard shouting, whereupon he turned his head, and the motor car, seen by him for the first time, was upon him. He testifies that he was run down or struck by the front of the car, but all he knows is that he came in contact with it so that a front wheel ran over his foot and a side of the car struck him. He does not testify to any fact which proves or which permits the inference that the chauffeur was inattentive, or that he drove improperly, or recklessly, or that the car deviated suddenly from its course, or changed its speed, or that there was any management whereby the plaintiff suddenly or unexpectedly came into contact with the car. He does not testify to the speed. In effect he rests his case upon the proposition that he came into contact with the moving motor car, so that a front wheel and the corresponding side of the car injured him. And from that circumstance he would hold the defendant for negligence. His case was not aided at all by the testimony for the defendant. On the contrary, that confirms my conviction that at the close of all testimony the plaintiff was not entitled to a submission to the jury of the question of the defendant's negligence. As the plaintiff did not put his finger upon any specific act of omission or of commission which would justify such submission, neither did the learned court in its charge indicate any specific question or questions of the defendant's due care. The defendant, then in the car, his chauffeur, a passenger, and two disinterested witnesses who saw the occurrence, testified for the defense. The witnesses all agree that the motor car was barely moving, at a rate variously estimated from 3 to 5 miles an hour. The chauffeur testifies that he had shut off the power and that the car was moving with its former impetus. He also testifies that he was sitting at the side of the car to which the plaintiff approached; that he saw the plaintiff when 3 feet to the right and 4 feet ahead; that he had just sounded his horn and had shut down the power because of other pedestrians. The evidence further showed that as the plaintiff approached the car, the chauffeur, the defendant and one of the other witnesses, a policeman on post, shouted out to him, but that the plaintiff proceeded, hesitated, and then stepped forward into contact with the car. All of the witnesses agree that the plaintiff in effect walked into contact with the car. I fail to see what act or omission of the defendant would permit a finding of his negligence. He was not bound to bring his car to a standstill; he had a right to go on. There is no proof and no inference possible that in the exercise of due care he had reason to believe that if he proceeded the plaintiff would continue so as to come into contact with the wheel or the side of his car. There is no circumstance shown which required the plaintiff to continue his course to such contact. Ordinarily the plaintiff had no right of way, but each party could continue in his course with relative regard for the other's right of travel. ( Barker v. Savage, 45 N.Y. 191.) It does not appear that after such contact was inevitable the defendant in the exercise of due care could have done anything then omitted by him to prevent that contact. Indeed there is serious question whether the plaintiff was not guilty of contributory negligence as matter of law. ( Lofsten v. Brooklyn Heights R.R. Co., 184 N.Y. 148.) In any event, the question of such negligence is an important one in this case.
The court erred in the exclusion, as privileged, of the defendant's question on cross-examination of the physician of the plaintiff. When the patient called the physician to give evidence as to injury, pain and suffering attributed to this accident, the patient could not exclude, as privileged, the questions by the defendant as to professional treatment prior to this accident, for such questions might have shown the prior existence of such physical conditions, at least to a degree. The principle of privilege is not intended, as the courts have said, to be both a sword and a shield for the patient. This subject is thoroughly discussed by my brother MILLER writing for this court in Marquardt v. Brooklyn Heights R.R. Co. ( 126 App. Div. 272).
The judgment and order must be reversed and a new trial be granted, costs to abide the event.
HOOKER, GAYNOR, RICH and MILLER, JJ., concurred.
Judgment and order reversed and new trial granted, costs to abide the event.