(after stating the facts). We think no error was committed by the court in its modification of appellant’s third instruction. It is true, as stated by Mr. Labatt, that “a master’s duty in respect to furnishing his servant with a safe place in which to work extends to such parts of his premises only as he has prepared for their occupancy while doing- their work, and to such parts as he knows, or ought to know, they are accustomed to using while doing it. The ¡application of this principle has frequently prevented recovery in cases where the injury proximately resulted from the fact that the injured servant was occupying a dangerous position merely for his own convenience and accommodation. Under such circumstances, his legal rights are no greater than those of a licensee. ” 4 Labatt, Master & Servant, § 1558-b, and cases cited. But there is no evidence that appellee had gone beyond the line of his employment, nor does the evidence show that he was injured while in a place where he had no right to be. Appellant does say that no one knew of appelle’s presence at the time of his injury, but it does not deny the right of appellee and other employees to go to, and be at, the place where this injury occurred. It states its position in regard to appellee’s presence as follows: “He attempts to justify his action by saying that it was necessary to go and get coal, and that he was getting a drink of water at the time. It is undisputed, however, that the operation of actually pulling in the logs requires much the shorter part of the time. It requires much more time to carry the cable out and attach it to the logs, etc. There is no reason why appellee could not have carried his coal and secured his water while there was no danger caused by pulling in a log. His position must have been known to him to have been dangerous; it was not necessary for him to be there, and no one else knew of his dangerous position.” It is probably true that it was possible for appellee to have gotten a drink of water and to have carried his coal without being injured, but that is not the test of negligence. This third instruction, as modified, required the jury to find that appellee exercised ordinary care for Ms own safety and was witMn the line of Ms employment at the time of his injury, before he could recover. If he was witMn the line of his employment at the time of his injury the relation- of master and servant existed, and their relative duties and obligations were to be measured accordingly. Other instructions were given which correctly announced the duties of master and servant respectively, and in regard to the assumption of risk, and the jury must have found that appellant was negligent in furnisMng defective tongs and that appellee was in the line of his employment at the time of his injury, and was not guilty of contributory negligence.
We think the evidence abundantly warranted the jury’s finding that appellee was engaged in the line of his employment at the time of his injury, if indeed it was sufficient to require the submission of that question to the jury.
Under the agreement in regard to the evidence of Doctors Clark, Butler and' Jones, the following answers given by Doctor Clark were inserted in the record:
Q. What did the wound, as exhibited there (before the jury) indicate?
A. Indicated that there was no fracture existing at the present time, or nonunion of the bone of a former fracture.
Q. Please go into detail and explain why it exhibits a union at the present time?
A. The plaintiff forgot Mmself and crossed his leg, and began a continuous movement of Ms leg across the knee. With an ununited fracture, there is nothing to hold the leg except skin and muscles. Should such a condition exist, instead of the leg being stiff and straight, as is contended, the foot would have dangled and bent upon the leg. Another reason — the ends of the bones rubbing against one another would irritate the nerve and cause pain, and he would be unable to do it without being conscious of having pain for so doing.
Q. Please state, whether, upon the limbs being thus crossed, there was anything to continue the union or nonunion, and if there was a union or nonunion of the previously fractured limb, and, if so, what was it?
A. It showed positive evidence of union because were there nonunion, there would be sagging, or not being able to control the foot; the foot would dangle more or less since there is nothing to hold it under such conditions except muscle and skin.
Q. Did you notice whether the foot was in proper position with reference to the limb?
A. Yes; the large toe was on a line with the knee; cap, which is always our guide.
This witness heard appellee testify, and in these excluded questions stated various other reasons, based upon his observation of appellee, upon the witness stand, for his opinion that there was no nonunion of the bone, and this witness further stated that the x-ray pictures offered in evidence showed a perfect union of the bones.
This witness testified that he owned an x-ray machine, and was familiar with its use and the character of the pictures taken by it. In his answers he explained how these pictures were taken, and stated that the pictures offered in evidence indicated a complete union of the bones.
The questions submitted to, and the answers given by, Doctors Butler and Jones, indicate their concurrence in the opinions expressed by Doctor Clark. As has been stated, none of these witnesses were permitted to testify, even as experts, for the reason stated at the time, and now urged by counsel, that these doctors had attended appellee in a professional capacity and would be unable ■to disassociate their knowledge as experts from the information they had acquired by their examination and treatment of appellee while attending him in a professional capacity. There was nothing in the record indicating that these physicians would have given answers to the questions asked, which were based even in part upon the knowledge acquired by them during the existence of the relation of physician and patient. If snch had been the case their evidence would have been incompetent for the law is that a physician can not express an opinion at all, if his opinion is founded in part upon the information acquired during the existence of that relationship. People v. Murphy, 4 N. E. 326.
But nothing in these questions or answers would indicate that this relation had existed between the witnesses and the appellee, and the questions which were asked them had no relation to any information which they might have acquired as appellee’s physicians. There was no attempt to show that these witnesses could not diassociate their information acquired in a confidential capacity from their general knowledge on the subject of fractures. These witnesses were present in court when appellee was testifying, as a witness in his own behalf, and their answers were based upon their observation of him during that time, and these questions were so framed as to exclude the necessity of considering any information previously acquired by the physicians. But appellee says that questions were asked these physicians which were not contemplated by the parties at the' time of the trial. For instance, that no offer wás made in court to interrogate these witnesses in regard to the x-ray pictures, but the record shows that appellee objected to these witnesses testifying at all, for the reason that they were incompetent as witnesses.
In the ease of Miles v. St. Louis, I. M. & S. Ry. Co., 90 Ark. 485, it was said: “Where a witness is rejected on the ground of his incompetency, it will be unnecessary on appeal to show what he would have testified, as it will be presumed that the witness would have been rejected, no matter how material the evidence might have been. ’ ’ And we must therefore presume in this case that the court would not have permitted these physicians to testify in regard to these x-ray pictures, if they had been interrogated in regard to them. But the witness Clark was actually asked these questions at the trial:
Q. Did. you see the limb as exhibited here a while ago?
A. Yes, sir.
Q. What did the wound as exhibited there indicate?
The witness was not permitted .to answer that question, nor to testify further, because of the previous relationship between him and the appellee. This question was a competent one, and the witness should have been permitted to answer it, and this is true even though the court correctly refused permission to appellant for these physicians to make a physical exaniination of appellee.
We think this was peculiarly a case where a physical examination should have been required. Here appellee has recovered a judgment for the sum of $10,000, which is so large as to indicate either that it was the result of passion or prejudice, or that if such was not the case, the jury must have accepted as absolutely true all the evidence of the physicians of appellee who were permitted to testify as to the permanency of his injury, and the future treatment that would be required on that account, and the extent of his suffering. The evidence offered by the appellant, which was excluded by the court, flatly contradicts the testimony of the physicians who did testify, but the jury were not advised of that fact, and the evidence which they heard stood undisputed and unquestioned before them. In the case of Sibley v. Smith, 46 Ark. 275, it was said: ‘ * The rule to be deduced from these cases is that where a plaintiff in an action for personal injuries alleges that they are of a permanent nature, the defendant is entitled, as a matter of right, to have an opinion of a surgeon upon his condition, based upon personal examination.” And the rule there announced is affirmed in the case of Railway Co. v. Dobbins, 60 Ark. 481.
The trial court must necessarily have some discretion in prescribing the time and conditions under which this examination must be made, and the physicians by whom it may be conducted, and the action of the court in allowing or permitting the examination to be made by any particular physician would not call for a reversal of the case, unless it affirmatively appeared the discretion of the court had been abused, and we do not reverse this case because of the court’s refusal to grant the right to appellant to have a physical examination of appellee made by the doctors whose evidence was excluded. But we feel very confident that prejudicial error was committed in forbidding these physicians to state their opinion, based upon their observations of appellee during the trial, when he exhibited his leg to the jury. ' These witnesses should have been allowed to state their opinions of appellee’s condition, based upon their observations of him then and there, for to have answered these questions did not require a physical examination, and none was made. Appellee argues that other physicians might have been secured, either in the town where the trial occurred, or in the neighboring city of Pine Bluff. But these physicians might not have had the opportunity of observing appellee at the trial, which was afforded the witnesses who were excluded. Moreover, if these witnesses were competent, appellant was entitled to the benefit of their evidence.
A question similar to the one now under consideration was involved in the case of Crago v. City of Cedar Rapids, reported in 98 N. W. 354. There the plaintiff alleged that the injuries from which he was suffering* resulted from a fall which he had sustained, and several physicians were permitted to express their opinions upon both sides of the question, as to the cause of the injury, when a Doctor Rumel was called as a witness, and it was shown that he had been one of plaintiff’s attending* physicians, and his evidence was objected to on that account. It was agreed there that the record should show that the questions propounded to the other experts had been asked him and the objections separately interposed. Hypothetical questions without referring to or disclosing witness’ former employment as her physician were all held incompetent under section 4608 of the Code of that State, which is substantially the same as section 3098 of Kirby’s Digest of the laws of this State, excluding any physician from disclosing any information which he may have acquired from his patient while 'attending him in a professional capacity, and which information was necessary to enable him to prescribe as a physician. It was there said: ‘ ‘ But no communication, confidential or otherwise, was sought to be elicited, and any intention to attempt this was expressly disclaimed. The questions did not refer thereto, directly or indirectly. Manifestly, then, the statute did not authorize the exclusion of the testimony. The record contains no suggestion of the physician’s inability to disassociate the facts stated in the questions from what he had learned from his patient. Indeed, the nature of the inquiry seems to obviate any such difficulty.” And after holding that the evidence was competent the judgment of the lower court was reversed, because of its exclusion.
The rule is thus stated in 40 Cyc. 2382: “In order for a physician to be incompetent, the relation of physician and patient must have existed between him and the person, as to whose statements, symptoms or condition he is called to testify, at the time when he acquired the information which he is called on to disclose; and so a physician may testify as to what he observed or learned as to a person’s condition before the relation of physician and patient was established between himself and such person, or as to matters which transpired or which he observed after the relation had ceased.” Other cases sustaining this view are People v. Schuyler, 106 N. Y. 304, 12 N. E. 783; Herries v. City of Waterloo, 114 Ia. 377; 86 N. W. 306; People v. Koerner (N. Y.), 48 N. E. 730, 731; Fisher v. Fisher, 129 N. Y. 654, 29 N. E. 951.
Other questions are raised and argued in the briefs, but we think it unnecessary to discuss them.
For the error in excluding the opinions of Doctors Jones, Butler and Clark, based upon the observation of appellee in court, the judgment of. the court below must be reversed and the cause remanded for a new trial.