dissents in a memorandum as follows: In my view, there is no fundamental error in this case and the jury’s verdict that defendant’s negligence was not a substantial factor in causing plaintiffs injuries should stand. Accordingly, I dissent.
As the majority points out, the record reflects that after the court gave the preliminary instruction that “[t]here will be no testimony or any mention of injury,” it became clear that the parties were in disagreement as to the scope of the liability trial, i.e., whether plaintiff was required to prove causation only of the accident or whether he was required to prove causation of the injuries as well. When the trial continued two days later, however, the court announced that the parties had reached an agreement, which defendant’s counsel put on the record as follows: “If negligence, meaning the act and the injury, causation [sic] is established, then [p]laintiffs attorney is entitled to twenty-five thousand dollars, and with that understanding [plaintiff’s attorney] is going to investigate whether there is a doctor available to testify with respect to the liability of causation.” Plaintiffs counsel acknowledged that the parties had so agreed, with the qualification that if he could not obtain the testimony of one of the doctors whose report had been exchanged, he would ask for a mistrial.* Counsel and the court then discussed how best to clarify the *393court’s erroneous instruction as to evidence of injury. Immediately after the jury entered, the court supplemented its earlier instruction: ‘Yesterday when I spoke to you at length about certain instructions that I had told you that there would be no testimony or mention about injury, one of the things that the attorneys and I have discussed this morning that there may be, in fact, testimony concerning physical injury and treatment. If I allow that part of the record you may consider it only as to the question of liability, that is, who is responsible for the occurrence and the injury. You are not to consider the medical testimony for any other purpose.” Plaintiff did not object to this instruction; indeed, he consented to it in advance. Nor did he object either to the submission to the jury of the question whether defendant’s negligence was a substantial factor in bringing about plaintiffs injury or the jury charge as to that question.
The corrective charge was prompt and clearly instructed the jury that it was to disregard the previous instruction regarding evidence of injury and that it could, in fact, rely on such evidence for a limited purpose. Thus, I am at a loss to understand the majority’s conclusion that it “likely did not dispel the confusion.”
The majority also suggests that while plaintiffs treating neurologist testified about some of plaintiffs injuries, plaintiff was prejudiced by his inability, on such short notice, to call three other treating physicians and to subpoena defendant’s examining physician. As noted, however, plaintiff did not object to this method of handling the problem; he unequivocally expressed his willingness to proceed with the trial so long as one of “the doctors whose reports had been exchanged” would be available to testify. The neurologist was one of those doctors. While, with the benefit of hindsight, plaintiff might not have consented to proceed with the trial with only the neurologist’s testimony, having chosen to go forward, he should not be permitted to reap that benefit now.
Accordingly, the order should be affirmed.
I note that plaintiffs attorney's affirmation, which states that the Trial Judge ruled that defendant would be allowed to contest whether the injuries had arisen from the accident and that plaintiff objected on the ground that this was not the original agreement and that he would be prejudiced by this *393approach, is in sharp contrast to the trial transcript, which reflects that both parties’ counsel ultimately agreed that proof of causation of the injury would be required to establish liability. While after the jury reached its verdict, plaintiffs attorney’s stated that throughout the trial he had maintained that the only issue the “jury should determine is the issue of whether or not an accident happened,” the record establishes otherwise.