(dissenting). This action is for the recovery of damages for a personal injury caused by the negligence of the defendant. On the trial the plaintiff was permitted to prove, against the objection and exception of the defendant that he depended on his earnings for the support of himself and wife. That he had no other means, and that since December 1 1885, his wife had been working what she could for the support of both. It is held in the prevailing opinion that this evidence was not admissible generally, nor on the cpiestion of damages which is well sustained by the authorities cited, and others might be added.
It is sought to sustain in this court the reception of the testimony on the ground (we use the language of the respondent’s counsel) “ that it was competent for the purpose of showing that the plaintiff used ordinary care to cure and restore himself; that he acted in good faith and resorted to such means as were reasonably within his reach to make his damages as small as he could.”
The rule here stated was laid down in Lyons v. Erie R. Co. (57 N. Y. 490), in this language: “ When one receives an injury through, the. carelessness of another, he is bound to use *89ordinary care to cure and and restore himself. lie cannot recklessly enhance his injury and charge it to another. If his arm he broken, he cannot omit to have it set and charge the loss of the arm to the wrong-doer. He is not obliged to employ the most skillful surgeon that can be found or resort to the greatest expense to ward off the consequence of an injury which another has inflicted upon him. He is bound to act in good faith and to resort to such means and adopt such methods reasonably within his reach as will make his damage as small as he can.” The rule was reaffirmed in Sauter v. N. Y. C. & H. R. R. R. Co. (66 N. Y. 50), and must be regarded as a settled rule of law in this state. At this point it is important to inquire whether an issue, that the plaintiff had not used ordinary care to cure himself, had acted in bad faith and had failed to resort to such means as were reasonably within his reach, was raised on the trial. It is not alleged in the answer that, the plaintiff was negligent in respect to the means used to affect his cure or that his attendants, professional -or lay, were incompetent or negligent, and such an issue is not alluded to in the charge, nor do we find any trace of it in the evidence, unless it is contained in that quoted by the respondent’s counsel for the purpose of sustaining this ruling, all of which we will uoav quote.
The first witness sworn in behalf of the plaintiff was his father-in-law, Jonathan Allen, who on his cross-examination testified: “ Alfred Center is a place of from 800 to 1,000 inhabitants. Dr. Shepard is one of the practicing physicians in that place. The country about there is quite thickly settled for a farming country, farms averaging about a hundred acres to the farm. Dr. Shepard’s practice is confined to that locality.
“ Q. Some time after this injury, did you make any arrangement for Dr. Seguin to visit Mr. Alberti and examine him % A. We did; yes, sir.
“ Q. And about when was that ? A. Mrs. Alberti can explain that better than I can, for she made the arrangement. I think it was the last of ¡November or first of December, some time along then.
*90“ Q. Did you have anything to do with making that arrangement ? A. I did; I requested Dr. Hubbard of Hornellsville, who was one of the consulting physicians, with the advice of others, to send for Dr. Seguin.
“ Q. Did you do that because you understood Dr. Seguin was skilled in that class of cases? A. We did; yes, sir.
“ Q. And was that arrangement made for an examination with a view of having him treat Mr. Alberti ? A. Yes, sir; and as I understand it the day was set for him to come up, but Mr. Alberti got so bad he thought he could not stand the examination, and I requested Dr. Hubbard to telegraph to Dr. Seguin to wait further orders, and he did not go then at all until quite recently. Dr. Shepard has been the attending physician. Dr. Crandall has been one of the consulting physicians. He has practiced at Andover. It is eight miles south of Alfred, on the Erie road. It is a place of about 1,000 inhabitants, it may be more, 1,200. Dr. Hubbard we have called once and Dr. Robinson once. Those were single visits. The treatment has been under the direction of Dr. Shepard.
“ Q. How, has Mr. Alberti at any time since this injury been under the charge of any one who was especially skilled in this class of cases ? A. Well, no more so than these men I have mentioned.
“ Q. Than such men in that ordinary practice would be ? A. Yes, sir; I don’t know what their skill is.”
The plaintiff was not present at the trial, but his deposition taken March 26, 1886, pursuant to sections 872 and 873 of the Code of Civil Procedure was read in his behalf at the trial which occurred April 26, 1886. Among other statements the deposition contained the following: “ I depend on my earnings for the support of myself and wife.” The defendant objected to the reading of the sentence quoted “ as incompetent and improjier,” but the objection was overruled, an exception taken and the sentence was then read. (Eal. 101.)
The plaintiff’s wife was sworn in his behalf (being the sixth witness) and was asked : “ Q. Has Alberti any other means of *91support than what he earns ? ” This was objected to by the defendant “ as incompetent and improper,” hut the objection was overruled, an exception taken and this answer given : “A. No, sir ; he has not. Since the seventh of December I have been working what I could to support myself and him.” (Fol. 247.) Dr. Mark Shepard, plaintiff’s attending physician, was sworn in his behalf and testified, among other things, to his belief that the plaintiff was incurable. Upon cross-examination he testified:
“Q. What you are giving here is simply your opinion, is it not., in answer to these last questions? A. To these last questions, my opinion, yes, sir.
“ Q. And that opinion is based upon your experience since you have been practicing, in part, is it not? A. Well, in a very small part, yes.
“ Q. In part, it is based upon what you had learned in regard to the human system and the various diseases before you commenced to practice ? A. In part, yes.
“ Q. Is it based upon anything except those two? A. Yes, sir. I commenced practicing in the spring of 1878. I graduated at the University of the City of New York, in the spring of 1878. I immediately commenced my practice at Alfred and Alfred Center. I attended this university two winter courses. During the time I have been practicing there I have not had under my charge another case like this. This is the first case of this kind that has come under my medical observation. When I came to see Mr. Alberti on the morning of the twenty-fifth of July, the examination revealed to me something I had not observed before in my medical experience.
“Q. And it has in its various stages—I mean this case—• developed those things which you had never observed or known of in your medical experience before ? A. Yes, sir.
“ Q. Then, in your treatment of this case, there was nothing in your medical experience which guided you, was there? A. Yes, sir; there was. My general knowledge of the treatment necessary with troubles with the spinal cord, congestion and meningitis.
*92“ Q. Did you. ever have a ease of meningitis % A. .0, yes, lots of them.”
Dr. Wm. M. Crandall, the physician who had been called in consultation with Dr. Shepard, was sworn in behalf of the plaintiff, and testified, that in his opinion it was very doubtful whether the plaintiff could ever recover. Upon cross-examination he testified: “ I practice medicine at Andover, H. Y. This is seven miles from Alfred. Andover is a place of not over a thousand inhabitants. There is a country district around there. My practice has been confined' mostly to that locality. I have not had occasion in my medical experience to treat a case like this. Because no two cases are exactly . alike. Have had occasion to treat cases of meningitis, cerebrospinal meningitis, I believe this to be a case of meningitis, that is my opinion in regard to it. I have seen others besides myself treat cases of meningitis. Have advised them with reference to them. Dr. Lewis, who was sworn here as a witness yesterday, Dr. Baker, Dr. Harmon—well, I don’t know, I should be bothered, may be, to think of them all. They are physicians in the locality in which I live I don’t think any of them ever made diseases of that kind a speciailty.
“ Q. Then have you ever seen the treatment of a case of this kind or of this class by some physician who made a speciality of diseases of that character? A. Ho, sir; I don’t know as I can say I have.”
Smith Ely, a physicial residing at Hewburgh, made an examination of the plaintiff April 1st or 2d, 1885 in connection with Drs. Lewis, Crandall and Shepard, and was sworn as a witness in behalf of the plaintiff. He testified on cross-examination : “ I don’t say that it is impossible that he should recover. I don’t think there is any doubt but that there was no lesion of the cord. There is some doubt whether the membranes were actually inflamed. I think the symptoms point to that.
“ Q. Who is the best qualified to express an opinion on that subject, the ones who have made it a special study for life % A. Yes, I should think they would.
*93“ Q. Is Dr. Seguin recognized as a standard authority on matters of that kind in this country? A. Yes, he is.
“ Q. And you think he would be well qualified to express an opinion on those matters? A. Yes, of course.
“Q. You have heard the testimony here in regard to Alfred Center and you saw the place there yourself. Isn’t it a fact that in ordinary country practice in a case of this character which required special treatment, the ordinary method is to put him under the hands or charge of some one who has special knowledge in that direction ? ”
Objected to by the plaintiff as incompetent and immaterial. The objection was sustained and the defendant excepted. It is possible to infer that this question was asked with reference to raising the issue- that the plaintiff had been negligent in not employing a physician having special skill and experience in the treatment of injuries like the plaintiff’s, but this question was excluded by the court. We have now quoted all the evidence referred to by the respondent’s counsel for the purpose of sustaining this ruling, and we think it very clearly shows that no such issue as is now sought to be introduced into the case was presented on the trial. All of this evidence was given before the plaintiff rested. The defendant called four physicians: Doctors Seguin, Still-man, Robinson and Rye. The first three acquired their knowledge of the plaintiff’s condition by being called in consultation by him, and Dr. Rye gave no evidence of consequence.
But two issues were contested at the trial: (1) Were the plaintiff’s injuries caused by the actionable negligence of the defendant; (2) the extent of the injuries sustained and the probable duration of the consequences. To this second issue all of the medical testimony was directed and none of it tends to show that the plaintiff was negligent in the means adopted for his cure or that such a position was taken by the defendant at the trial, and it seems to us plain that this so-called issue has been raised out of the record for the purpose of avoiding the effect of the ruling discussed.
*94The judgment should be reversed, and a new trial granted, with, costs to abide the event.
All concur with Haight, J., except Follett, Ch. J., and Potter, J., dissenting, and Brown, J., not sitting.
Judgment affirmed.