Griffiths v. Metropolitan Street Railway Co.

Ingraham, J.:

This case comes before us upon an appeal from a dismissal of the complaint upon a trial before a jury. After the testimony was completed the defendant moved to dismiss the complaint upon the ground that the plaintiff had not shown by preponderance of proof that he was free from contributory negligence, and that the accident was caused solely by the negligence of the defendant. The court reserved the decision of this motion until after the jury should have passed upon specific questions submitted to them. The jury answered these questions in favor of the plaintiff, finding that the defendant was guilty of negligence, and that the plaintiff was not guilty of contributory negligence, and assessed the damages at $5,000. After this verdict had been rendered the court granted the defendant’s motion to dismiss the complaint, upon, which dismissal judgment was entered and the plaintiff appeals to this court.

The decision of this motion was reserved under the permission given by section 1187 of the Code of Civil Procedure. That section provides that “ When a motion is made to nonsuit the plaintiffs or for the direction of a verdict, the court may, pending the decision of such motion, submit any questions of fact raised by the pleadings to the jury or require the jury to assess the damage. After the jury shall have rendered a special verdict upon such submission, or shall have assessed the damage, the court may then pass upon the motion to nonsuit or. direct such general verdict as either party may be entitled to.”

The first question we have to determine is whether the court correctly dismissed the complaint. I am satisfied, after a consideration of this testimony, that the question as to the plaintiff’s contributory negligence and the defendant’s negligence was for the jury. The jury could find from this testimony that the plaintiff walked out upon the track and stood there ten or fifteen seconds waiting for cars to pass upon the other track in full sight of the motorman. This was sufficient time to enable the motorman to stop the car, or, at least, give a signal of the approaching car to warn the plaintiff. The jury could find that the car ivas neither stopped nor a signal given. Notwithstanding this the car proceeded until the plaintiff was run over. This would certainly justify a finding that the motorman was negligent in running down the boy standing upon the track. As to the plaintiff’s contributory negligence, I also think that was a question for the jury. The plaintiff, at the time of the accident, was between seven and eight years old, and the same care is not to be expected of a’ boy of this age as of one of more mature years. Considering the age of the plaintiff and the surrounding circumstances, I do not think that he would be said to be guilty of contributory negligence as a matter of law. The dismissal of the complaint must, therefore, be reversed.

The complaint having been dismissed there could be no motion for a new trial, and the questions presented upon such a motion are not before us. I have, however, examined the record with care and. have come to the conclusion that the verdict was not against the weight of evidence, so that neither the court below nor this court would be justified in granting a motion for a new trial if one had been made.

The only remaining question insisted upon by the defendant is the exclusion of the testimony of a Dr. Moorhead who saw the plaintiff immediately after the accident. 'This witness was in the neighborhood. He was one of the surgeons employed by the defendant. After the plaintiff was taken to a drug store he went in to see him, and volunteered his services to stop the flow of blood until the ambulance arrived. He subsequently saw the boy at the hospital, ten days after the accident. The boy was then in bed in the ward, and the witness asked him. to tell the details of his accident, to which the plaintiff made a reply. He certainly, while thus attending to the boy to stop the flow of blood, occupied to the boy the relation of physician, and when the witness subsequently went into the hospital, after the amputation of the boy’s leg, and asked him questions as to the accident, the boy was justified in treating him as a physician who had attended him. His going to the hospital, having no previous acquaintance with the boy, no interest in the case except in his professional capacity, and attempting to-obtain from him declarations as to the accident, was unauthorized and impertinent. Declarations made by the person thus severely injured, made to a physician under such circumstances, would certainly be privileged. Except as a physician, he had no business in the hospital. He did not inform the boy that he came as a representative of the defendant, and for the purpose of extracting from him an admission which would tend to relieve the defendant from liability. Under such circumstances, I think, the boy was quite justified in considering a person who thus addressed him as a physician and in answering his questions freely and frankly, without considering that his answers would be used against him as admissions.

I agree, therefore, with the learned trial judge that this testimony was correctly excluded ; and, I think, no error was committed upon the trial which justifies us in awarding a new trial. By section 1187 of the Code, before referred to, it is provided that “ on an appeal from the judgment entered upon such nonsuit or general verdict, such special verdict or general verdict shall form a part of the record, and the Appellate Division may direct such judgment thereon as either party may be entitled to.” Upon this appeal,, therefore, we think the nonsuit should be set aside and a judgment directed upon the -verdict, with costs.

O’Brien and Patterson, JJ., concurred; Van Brunt, P. J.„ and Laughlin, J., dissented.