The plaintiff instituted this action to recover damages for personal injuries alleged to have been sustained by her through the defendant’s negligence on the 17th day of October, 1893. She was at the time an employee of the defendant, and her duties required her to use a flight of iron stairs which led from the pantry in the defendant’s club house to the basement below. On the day in question, in passing down the stairs, one of the steps, by reason of a crack or break therein, gave way and her right ankle was seriously in jured. She had a verdict of $3,200, and from the judgment entered thereon and the order denying a motion for a new trial the defendant appealed, and it now insists that the judgment should be reversed (1) because it is contrary to the evidence; (2) because the damages are excessive, and (3) because the trial court erred in excluding certain testimony.
Upon the trial it was, in effect, conceded, at least it was not seriously disputed, that the plaintiff, on the 17th of October, 1893, fell upon the stairs referred to and sustained a serious injury. The real contest was whether the defendant was responsible for the injuries sustained; that is, whether the step was defective at the time the *494plaintiff fell, and, if so, whether such defect could have been discovered by the exercise of reasonable care on the part of the defendant. Keeping the real contest, in mind a brief reference to the testimony offered will demonstrate that the question presented was one properly for the jury, and that their verdict was justified by the evidence. The plaintiff’s witness, Strohlein, testified that in August, immediately preceding the day of the accident, one of the steps in the stairs — the third, fourth or fifth one from.the top—■ (and the plaintiff claimed to have fallen on the fourth or fifth one) “ was cracked across the full width of the stair,” and was braced up from underneath with a piece of iron. He also testified that he observed the same condition in the stair on two occasions thereafter, one of them in September and the other in October, only a few days before the plaintiff was injured. The plaintiff testified that after her foot went through the defective step she observed a piece of iron about three inches long on the step immediately below the one which was broken; that “ it was on the step below, underneath the crack.” Two other witnesses were produced, who testified without objection that an iron step, cracked in the middle and in the manner testified to by Strohlein, could not be properly repaired by bracing it from underneath; that the only way in which such a defect could be remedied was by removing the broken step and substituting a new one in its place. The testimony offered by the witnesses referred to, bearing upon the previous condition of the step and the repairs made to it, was substantially uncontradicted by the defendant. It is true that the defendant, out of some thirty odd servants then in its employ, who it alleged were in the habit of constantly using the stairs in question, produced four witnesses, McKenzie, Keech, Perriot and Perriot’s wife. McKenzie testified that he heard of the accident, and on the same day examined the step and found it broken, and in such a way as to leave an opening in .the break of an inch and one-half, and that none of the steps were broken before this, to his knowledge. He did not enter the employment of the defendant until the second of October, and there is nothing to indicate that thereafter his attention, prior to the accident, was directed to the stairs, or that he ever made any inspection of them whatever. Defendant’s witness Keech corroborated McKenzie, but it is to be noticed in connection with his testimony that he *495did not go to the defendant’s club house or commence to work therein until the nineteenth or twentieth of October, which was two or three days after the accident is alleged to have taken place. The witness Eerriot testified that he never saw “ anything particular in that stairs that required repair,” but. he did not deny that there was a broken step in the stairs prior to October 17, 1898, nor that he had knowledge of such defect. The only other witness produced by the defendant was the wife of the witness last referred to, who testified that she used the stairs frequently between the first of October and the first of November, and she “never saw that the step was broken; ” but in connection with her testimony it must he remembered that the defendant conceded that the step was actually broken during the month of October, and was repaired by defendant’s witnesses McKenzie and Keeeli.
I have thus referred at some length to the evidence bearing upon the defective condition of the step prior to the accident, for the reason that it was strenuously urged upon the oral argument, and the same position is taken in the brief submitted, that the -verdict was" against the weight of evidence in this respect. It is not against the weight of evidence, but in accordance with it. The judgment cannot be disturbed on this ground. The damages awarded cannot be said, under the facts disclosed, to be excessive. If the plaintiff was injured to the extent claimed by her, and it was for the jury to say, then the amount awarded was none too high. This brings us to the consideration of the remaining question, which is the only difficult one presented, and that is, whether the court erred in sustaining- the plaintiff’s objection to the admission of certain evidence.
Upon the trial plaintiff testified that on the second of December following her injury, she went to the German Hospital for treatment, and there remained until the .ninth of the same month, when she was sent to the Isabella Home, and that after remaining there some five weeks she returned to the former institution, where she remained about a year and a half, and that during that time six operations were performed upon her ankle and pieces of bone were at each operation removed. Upon cross-examination she stated that when she went to the German Hospital, Dr. Camerer treated her, and also Dr. Tsitchlowdtz. She also stated that, when the operations referred to on her direct examination were performed, she was under the *496influence of ether, but knew that pieces of bone were removed, because she was so informed by the doctor.
Dr. Tsitclilowitz was thereafter called by the defendant, and after he had testified that on the 2d of December, 1893, he admitted the plaintiff as a patient to the German Hospital, examined her and made a diagnosis of her case, he was asked this question : “ What did you find % ” The plaintiff objected upon the ground that the answer was not admissible under section 834 of the Code of Civil Procedure, and after some discussion between the court and counsel, the objection was sustained and exception taken by the defendant, the court stating the reason for the ruling as follows : “ My ruling is that yon are not entitled to obtain from this witness a disclosure of what he ascertained by an examination of this woman while she was his patient.” It is claimed that the exclusion of this testimony was error, and that the exception taken thereto requires a reversal of the judgment.
I cannot agree to that conclusion. The plain and positive requirements of sections 834 and 836 of the Code of Civil Procednre not only justified but required the trial court to make just the ruling which it did. The information sought to be obtained from the doctor by the question asked was not admissible. Section 834 of the Code, above referred to, 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 wdiieh was necessary to enable him to act in that capacity ; ” while section 836 provides that section 834 applies to “ any examination of a person as a witness unless the provisions thereof are expressly waived upon the trial or examination by” the patient. The relation of physician and patient is conceded to have existed, and the information sought is also conceded to have been derived by the physician from an examination made by him by reason of that relation. The question called for the information derived by the doctor from the examination made by him of the patient when she applied on the 2d day of December, 1893, for admission to the hospital. The ruling of the court simply went to the extent of prohibiting him from making known the information thus ascertained. The learned trial justice was guarded in his ruling, and while counsel sought to get from him a general ruling, he *497responded by saying: “ My ruling is that you are not entitled to obtain from this witness a disclosure of what he ascertained by an examination of this woman while she was his patient.”
But it is claimed that this ruling in effect prohibited the defendant from questioning the doctor as to anything that took place while the plaintiff ivas under his care. Assuming that the ruling went to that extent, I am also of the opinion that no error was committed. It is conceded that the testimony of the doctor was incompetent under 'section 834 of the Code, unless the privilege accorded by the statute was waived by the plaintiff. But it is claimed she waived this privilege. How ? By her giving testimony “ detailing the operations that were performed upon her at the hospital by the physicians, and the treatment she then received; the statement of the physician as to the fact of the operation, and as to the advice he gave to the patient.” This, it is said, operated “ as a waiver of her privilege to exclude the testimony of the physician who performed the operation and who gave the advice.” Just how this is applicable to the question under review, I am unable to see. The question here is whether Dr. Tsitchlowitz could give the information derived by him from an examination of the plaintiff on the second of December, and long before any operation was performed. But, as herein-before said, if it could be conceived that the ruling made upon' this question was broad enough' to exclude all of the information derived by Dr. Tsitchlowitz while plaintiff remained in the German Hospital, it would not help the appellant. There is nothing to show that Dr. Tsitchlowitz ever performed, assisted or took part in any operation that was ever performed upon the plaintiff. The only fair inference that can be drawn from the evidence is that Dr. Camerer performed the operations. The plaintiff, as we have already seen, testified that the only way she knew bones were removed Avas what the doctor told her, and it is fair to infer from this that the doctor she referred to Avas the one who performed the operation. But this Avas not Dr. Tsitchlowitz. She testified : “ It was Dr. Camerer that I 'heard say that bones came out of my foot. Dr. Tsitchlowitz never told me that. That was told me in the German Hospital.” Upon her cross-examination it is true she said that Dr. Tsitchlowitz did not tell her that there was anything else the matter “ besides *498sprain,” but that testimony was not volunteered by her and did not, of itself, involve anything that the doctor did tell her; so that, for the purposes of the examination of this case, it need not be considered, and it is practically conceded that none of her evidence operated to waive her privilege as to the advice of a physician, unless it was what she said upon her direct examination. That evidence was only what was done in the German Hospital. In the nature of things, it could not have been a private examination, and it did not involve any information whatever obtained by a physician. At the time of the operation attendants must necessarily have been present, and the operation itself did not constitute information which the physician acquired, but was the result of the information previously acquired, by reason of which he was able to make up his mind that an operation was necessary. That there was such previous examination is fairly to be inferred from the fact that the operation took place; but the plaintiff gave no testimony as to that examination, or that there was an examination, or that the doctor gave her any information about it. Every fact that she testified to might have been testified to by any attendant who was present at the operation, and certainly, if testified to by an attendant, it would not have opened the door for the testimony of a physician as to what he discovered at an examination made at another time. The whole burden of the testimony of this witness was to give the consequences which she observed of the injury which she received.
Can it be said, while the statute above referred to remains in force, that if a person sustains an injury and thereafter brings an action to recover damages therefor, because he testifies in his own * behalf to the injuries sustained and that he was treated by a physician who gave him medicine and who performed an operation, he thereby waives the privilege accorded by the statute ? I think not. Such a conclusion seems to me absurd. It is true a waiver may be inferred from circumstances, but there must be something present from which it can be at least inferred that the party waiving does so willingly, voluntarily, purposely and intentionally. This, as I understand the authorities, has been the view heretofore entertained by the courts when similar questions have been presented for consideration. Thus, in Hope v. Troy & Lansingburgh Railroad Company (40 Hun, 438), where an action was brought to recover damages for injuries *499on account of the negligence of the defendant, and the plaintiff had been treated by three physicians, each one at a different time from the other; one of the physicians was called as a witness for the plaintiff and gave testimony as to the extent and character of the injuries. The defendant then called the other two. Plaintiff objected to their testimony, the objection was sustained, and the court on appeal held: “ The Code and the authorities justify the ruling.” This case was affirmed by the Court of Appeals in 110 New York, 643. And in Record v. The Village of Saratoga Springs (46 Hun, 448; affd. in Court of Appeals. 120 N. Y. 646), the plaintiff had two physicians who upon one occasion visited and had a consultation over her together. Hpon the trial plaintiff called one of them and he testified as to her condition at that time. The defendant then called the other and sought to examine him on the same subject, but upon objection his testimony was excluded upon the ground that the plaintiff did not waive her privilege to insist upon that physician keeping silent by calling the other one.
The case of McKinney v. Grand St., etc., R. R. Co. (104 N. Y. 352) is not in point. All that that case holds is that where a plaintiff calls a physician as a witness in her behalf upon a trial and he testifies fully as to her physical condition learned by him while attending her, upon a subsequent trial involving the same subject-matter, the defendant can call the same witness if plaintiff does not; or, in other words, that the statutory prohibition against a disclosure by a physician of information acquired by him while attending a patient can be waived by the patient, and when once waived cannot thereafter be recalled. Neither do I think the case of Marx v. Manhattan Ry. Company (56 Hun, 575) is an authority upon the question here presented. In that case the plaintiff in his own behalf testified that he had visited a Dr. Knapp two or three times to consult him about his eye; that Dr. Knapp did not examine him; that he simply looked at his eye, but asked him no questions and told him nothing, and that on the third visit he told the plaintiff to get examined by a doctor. Dr. Knapp was then called as a witness by defendant for the purpose of showing that the plaintiff did not truthfully state what took place; and the court held that the testimony was admissible because it “ related to the same interview as to which the plaintiff had testified, and to the occurrence of which he had pretended *500to give an account,” and that the plaintiff by his testimony waived his privilege and could not prevent an inquiry of the doctor upon the same subject. Nor does the case of Morris v. N. Y., Ontario & W. Ry. Company (148 N. Y. 88) sustain the appellant’s contention. All that the court there held was that when a party had been examined by two physicians acting together, both of them holding the same professional relation towards him, and he called one of them as a witness in his own behalf, in an action in which his condition, as it appeared at such consultation, was the important question, to prove what took place at the consultation and what the witness then learned, the party thereby waived the privilege conferred by the statute to object to the testimony of the other physician. And the reason for the rule as there stated is that after information acquired by a physician “ has once been made public no further in jury can be inflicted upon such rights and interests of the patient as the statute was intended to protect by its repetition at another time or by another person; ” that the act in calling one of the physicians as a witness amounted to a consent on the part of the patient that the other might speak freely as to what took place.
This case is precisely like that of Treanor v. Manhattan Ry. Co. (28 Abb. N. C. 47; 16 N. Y. Supp. 536). In that case it was held that when a witness disclosed upon the stand her physical condition, which was the result of the injury sustained, she thereby opened the door to the testimony of a physician who had attended her after that injury. In that case as in this there was no attempt on the part of the jflaiutiff to tell what the doctor had said as the result of an examination. The plaintiff confined herself there, as the plaintiff did here, to what took place and what she observed as the result of the injury which she received. The Court of Common Pleas held in that case that the plaintiff by giving that testimony waived her right to object to the testimony of the physician ; but the law as laid down in that case was unanimously and promptly disapproved by the Court of Appeals in the case of Morris v. N. Y., Ontario & W. Railway Co. (148 N. Y. 88, 93).
It follows that the plaintiff did not waive her right to insist that the information derived by Dr. Tsitchlowitz while she was his patient should be treated as confidential by him. She has not consented, and there is nothing from which a consent can be inferred, that the *501doctor should make known the information thus ascertained by him, and he should not be permitted to do so without her consent. The statute so provides, and it is the duty of the court to give effect to its plain and manifest meaning. If it be said that this may result in a hardship to the defendant, or that such a construction may at times work injustice, that is an argument which might he properly addressed to the Legislature, but not to the court. Courts do not make statutes ; they simply construe and give effect to them when made.
For these reasons I cannot concur in the opinion of Mr. Justice Ingbaham for the reversal of this judgment.
Rumsey, J., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event.