I concur in the reasoning of, and in the conclusions arrived at by, Mr. Justice CORFMAN respecting the matters and issues involving the alleged negligence of defendant and the contributory negligence of the plaintiff. I am of the opinion that the court, in view of the evidence of plaintiff respecting the treatment Dr. Critehlow gave his injured leg and what the doctor at the time said to him respecting the injury erred in excluding the proffered evidence of the doctor on those points. I am, however, of the opinion that the court did not err in excluding the evidence offered as to whether or not plaintiff was, at the time he was injured, afflicted with syphilis. The record shows that respondent testified at considerable length respecting the medical treatment that Dr. Critehlow gave his injured leg and related somewhat in detail the things the doctor said and did in that regard during the several weeks he was under the doctor’s care. The-following is a synopsis of his testimony on that phase of the case:
*451“I went to St. Mark’s hospital. I was treated by Dr. Critch-low. The third or second .day * * * Dr. Critchlow pnt it (the limb) in a box and then he afterwards straightened it by getting hold of the leg here with his hand and over there with his other hand, and he had the nnrse hold the leg — -he jnst straightened it over. * * * They had to give me opiates several times to relieve the pain.”
The record shows that, abont two weeks after respondent arrived at the hospital, Dr. Benjamin, under the direction and supervision of Dr. Critchlow performed an operation on the injured limb.
Respondent further testified:
“The operation was on the 6th of July. The doctor found out that gristle had grown in between the bones and told me that I had a fibrous union; that I had to go back for another operation and have the fiber cut out and the bones united closer. * # * My leg is bent a little now, and, if I were to put any more pressure on it, as Dr. Critchlow said, I might get a bigger bow. * * * If it wasn’t for the fact that I have a very tight elastic stocking on now, it would be twice the size. * * * I wear that under the directions of Dr. Critchlow. * * * I am still under the doctor’s care.”
Counsel for appellant contend that:
Respondent, by ‘ ‘ going upon the stand and relating in great detail the character and extent of his injuries, the treatment applied by the doctor, as well as to certain statements made to him by the doctor touching upon his injuries and the nature thereof, # # ® impliedly waived a privilege which he otherwise might have insisted upon.”
I think counsel’s contention in that regard is supported by the weight of authority — the better reasoned cases. I think respondent could very properly, without waiving his right to object to the doctor testifying with respect to the injuries and the treatment thei doctor gave him, testify to his general condition and describe the nature and extent of his injuries as he saw and felt them without referring to what the doctor may have told him or did for him concerning the injuries. Noelle v. Hoquiam L. & S. Co., 47 Wash. 519, 92 Pac. 372; May v. *452Northern Pac. Ry. Co., 32 Mont. 522, 81 Pac. 828, 70 L. R. A. 111, 4 Ann. Cas. 605; McConnell v. City of Osage, 80 Iowa, 293, 45 N. W. 550, 8 L. R. A. 778. He could not, however, testify to what the doctor said to him respecting the nature and extent of his injuries and the treatment applied by the doctor without waiving his statutory privilege to object to the doctor testifying. As the Supreme Court of New York aptly remarked in the case of McKinney v. Grand Street, etc., R. Co., 104 N. Y. 352, 10 N. E. 544:
“The patient cannot use this privilege both as a sword and a shield, to waive when it inures to her advantage, and wield when it does not.”