#### Cohodes, Respondent, vs. Menominee & Marinette Light & Traction Company, Appellant.

*April 3*

April *23,*1912.

*Street railways: Injury to passenger: Evidence:*Res gestae: *Witnesses: Competency: Physicians and surgeons: Privilege: Damages: Instructions to jury: New trial: Newly discovered evidence: Appeal: Harmless errors.*

1. Where plaintifi fell and was injured in attempting to alight from a street car, questions addressed to her by the motorman after he had stopped the car and come back to her, as to why she got off while the car was going and why she didn’t ring the bell, and her response thereto, were a part of the *res gestes,*so that evidence thereof was admissible on behalf of the street railway company.

*3092. But the motorman and another witness having testified as to such questions and response, exclusion of the testimony of a third witness to the same effect was not prejudicial error.

3. A physician for a street railway company, who was called to attend an injured passenger and who acted as her attending physician, was incompetent under sec. 4075, Stats. (1898), to testify to information acquired while acting in that capacity, as to the nature and extent of her injuries, for the purpose of showing that such injuries were not serious and that plaintiff was endeavoring to perpetrate a fraud upon the company.

4. Although plaintiff herself testified concerning her condition and the nature and extent of her injuries, she did not thereby waive her rights under said statute.

5. The provisions of said sec. 4075, Stats. (1898), are in no way relaxed in such a case hy the later legislation requiring physicians to file death certificates in a public office and to make report of certain accident cases to local registers of vital statistics.

6. An instruction upon the question of damages which stated that plaintiff was “entirely disabled” from doing her work as a boarding-house keeper, did not imply that she was so disabled continuously down to the time of the trial; but even if it did, the undisputed evidence in this case would warrant it, and hence no prejudice could have resulted.

7. To entitle a party to a new trial on the ground of newly discovered evidence, it must appear that he used due diligence to secure such evidence, that it is not merely cumulative, and that its production would probably bring about a different result; and upon this last point the trial court is best qualified to judge.

Appeal from a judgment of the circuit conrt for Marinette county: S. D. Hastings, Circuit Judge.

*Affirmed.*

On the morning of Thursday, July 8, 1909, the plaintiff was a passenger on a street car of the defendant company. She took a ear near her home in Marinette and went to Mene-kaune to purchase fish, and took the same car to return to her home in Marinette. The car was going westerly on Hall avenue, and at South Raymond street, where the plaintiff wished to alight, she was the only passenger left in the car. In attempting to alight from the car she fell onto the street and was *310injured. Sbe was assisted to her borne and an. injury to ber bead was then dressed. On tbe following Wednesday sbe was taken to a hospital, where sbe remained two weeks. Sbe was then brought home and in two weeks was again taken to tbe hospital, to remain for three weeks. While at tbe hospital tbe second time sbe underwent an operation for an injury to tbe womb and for an injury to tbe rectum, and was also operated on for appendicitis.

Tbe plaintiff testified that prior to receiving tbe injuries sbe was a strong, healthy woman, that sbe kept boarders and did all tbe necessary work, with but slight help from ber small children, but that since receiving tbe injuries sbe was unable to perform such work. Upon tbe question as to the cause of ber falling sbe testified that sbe rang tbe bell to stop the car as it approached South Raymond street, that tbe car stopped, and that as sbe was stepping from tbe rear platform to tbe step in tbe act of alighting it started up and sbe was thrown to tbe pavement. Sbe testified that sbe was bewildered, stunned, and dazed by tbe fall and sustained an injury to ber bead; that sbe was led home without being aware of what was occurring; that sbe recognized one of ber daughters; that she saw tbe blood which came from tbe wound on ber bead; that sbe asked ber daughter to undress and put ber to bed and call a doctor; that sbe became entirely unconscious and remained so for ten days, and that tbe slight improvement which then began, gTadually growing, resulted in full mental control and consciousness only after sbe bad been operated upon.

Tbe motorman testified that tbe bell was not rung for South Raymond street; that be did not stop there; that after be bad gone by be happened to glance back, saw no one in tbe car, and then saw tbe plaintiff lying on tbe pavement; that be stopped tbe car, assisted tbe plaintiff home, returned to bis car, and on bis trip back to town called on tbe physician employed by tbe defendant, and that be notified tbe physician of *311tbe accident. He also testified that he ashed the plaintiff, when he approached to assist her, why she did not ring the bell and why she got off the car without stopping it.

It appeared that a physician came to the home of the plaintiff shortly after she was injured and that he dressed the wound on her head, and that Dr. Redelings, the physician employed by the defendant, arrived thereafter, removed the dressing which the other physician had applied and redressed the wound, and that Dr. Redelings attended the plaintiff as physician each day until she was removed to the hospital. The •court refused to admit any of his evidence as to facts learned by him regarding the plaintiff’s injuries or physical condition while he was attending her as her physician.

The court refused to admit the evidence of the witness Noonan as to questions he heard the motorman ask the plaintiff as the motorman approached to assist the plaintiff home.

This trial, which is the second trial of this case, was had in January, 1911. The jury failed to agree in the first trial. In February, 1911, the court denied a motion for a hew trial. One of the grounds upon which the motion was based was newly discovered evidence. This alleged newly discovered evidence was that of a woman who was sitting at her window near the street crossing when the car from which plaintiff was thrown passed South Raymond street. In effect her evidence is that the bell did not ring, that the car did not stop, and that the motorman asked the plaintiff, when he was assisting her to arise from the pavement, why she did not ring the bell and why she got off the car while it was in motion.

This is an appeal from the judgment for the sum of $3,050 as damages, and for costs.

For the appellant the cause was submitted on the brief of *W. B. Quinlan,*attorney, and *F. J. Trudell,*of counsel.

For the respondent there was a brief by *Fairchild & Goldman,*attorneys, and *P. H. Martin*and *H. B. Goldman,*of counsel, and oral argument by *Mr. Martin.*

*312SiebKCKER, J.

It is urged that tbe court erred in excluding tbe evidence of tbe witness Noonan, to tbe effect that be beard tire motorman ask, wben be approached plaintiff after sbe bad fallen into tbe street, “why sbe got off tbe car before tbe car stopped, or while tbe car was going, and why sbe didn’t, ring the bell; I did not understand what sbe said; sbe attempted to say something.” This evidence is so closely connected with tbe transaction that it must be deemed to be the-spontaneous utterances of tbe speakers, springing out of the-transaction itself, and hence tbe product of tbe speaker’s mind, prompted by tbe event and not *the*result of deliberation after tbe event, and therefore it was part of tbe *res gestee.*It appears, however, that tbe witness Annie Wbeliban testified to-this same conversation, stating that tbe motorman asked tbe plaintiff why sbe did not ring the bell and why sbe got off the-car before it stopped, and that tbe plaintiff made some reply sbe did not understand. Tbe motorman, in parts of bis examination, testified to tbe same effect. This evidence was submitted to tbe jury. Under these circumstances tbe ruling-complained of operated in no way prejudicially to tbe defendant’s rights, since the evidence received embraced the matter stricken out.

Dr. Redelings was tbe plaintiff’s attending physician for about a week. Tbe defendant sought to elicit from him evidence tending to show that there was nothing serious about tbe alleged injuries, and that tbe plaintiff was endeavoring to perpetrate a fraud on tbe defendant and was malingering as to-her injuries for tbe purpose of increasing tbe damages. The-inquiries propounded to tbe doctor for this purpose necessarily embraced information acquired by him while be was attending her in bis professional capacity to enable him to' prescribe for her. He testified that be was called to attend her and that whatever information be bad as to tbe nature- and extent of her injuries bad been acquired by him while attending her as her physician. Such information is within tbe *313provisions of sec. 4075, Stats. (1898), and cannot be disclosed over the plaintiff’s objection. The cases in this court cover the points argued in this case and are decisive as to defendant’s contention. *Boyle v. Northwestern Mut. R. Asso.*95 Wis. 312, 70 N. W. 351; *Green v. Nebagamain,*113 Wis. 508, 89 N. W. 520, and cases there cited. The contention that because plaintiff testified concerning her condition and the nature and extent of her injuries she thereby waived her rights under this statute is also negatived in the *Green Case,*which was adhered to in *In re Will of Hunt,*122 Wis. 460, 100 N. W. 874.

It is argued that legislation requiring physicians to file death certificates in a public office and to make report of certain accident cases to local registers of vital statistics is a legislative declaration that the secrecy, as formally enjoined by the provisions of sec. 4075, Stats. (1898), has been relaxed, and that the privilege thereof, in cases like the present one, should be more restricted than formerly. We perceive no basis for this claim. There is no question before us of receiving evidence of facts embraced in any such certificate or report of Dr. Redelings. The court properly restricted the examination of the doctor upon the points involved.

The jury were instructed as follows on the question of damages:

> “Then you should consider what she has lost by reason of her inability to work and earn money. It appears that she was a widow lady, keeping boarders, doing her own work entirely, and, according to the testimony, she was entirely disabled for doing that kind of work; and you will consider what would be a reasonable compensation for her loss under that head up to the present time, and for the future, as far as the testimony makes it certain that she will lose by reason of her inability or impaired ability to work and earn money in future.”

It is contended that this instruction is a direction to the jury that plaintiff was entitled to damages for total disability *314from doing the entire work of keeping boarders np to tbe time of trial, and that the evidence as to her disability was in dispute, and hence the instruction invaded the province of the jury and determined the facts of the extent of her disability and the time of its existence. The language of the court is not to be interpreted as contended by the appellant. The meaning naturally conveyed and intended by the court, when applied to the facts before the jury, was that the plaintiff became entirely disabled from doing her work as boarding-house keeper. It was not, however, stated for how long a time such disability continued. It is to be presumed that the jury understood the court’s language in the sense in which it was used, and that it informed the jury concerning the plaintiff’s claim to compensation in the light of the facts, namely, that she was entitled to compensation for total disability for such a period as the evidence showed that it had existed before the time of trial. The evidence justifies the court’s inference of the fact that she was for a time entirely disabled by the injuries complained of and was unable to do her work, hence the instruction was not prejudicial to the defendant. If it be assumed that the instruction admits only of the interpretation for which appellant contends, still the récord fails to show any prejudice, for it appears in effect from plaintiff’s evidence and that of the witnesses called in her behalf to testify on the subject of her disability that she was so disabled to the time of trial. This evidence stands uncontradicted. In this view of the case no prejudice could have resulted under the appellant’s view of the instruction.

The court denied defendant’s motion for a new trial on the ground of newly discovered evidence and all of the evidence in the case. In passing on this evidence the court held that there was nothing showing that the defendant used due diligence to secure the newly discovered evidence, that such evidence was merely cumulative, and that if this evidence were produced there was no showing that the result of the trial *315would probably be different. Tbe trial court is unquestionably best qualified to judge of tbe effect of sucb evidence in connection with tbe evidence adduced on tbe trial. It is well established by tbe adjudications that all of these grounds must be affirmatively established by a moving party to entitle him to a new trial. An examination of tbe facts presented by tbe motion, in connection.with tbe evidence of tbe case in all these respects, leads us to tbe conclusion that tbe trial court’s decision is fully sustained as to each ground and that any one of them justifies bis denial of a new trial.

It is argued that tbe evidence does not support tbe verdict, in that it fails to show that tbe accident was caused by tbe negligence of tbe motorman, and in that plaintiff’s version of tbe transaction is so contradictory and unreliable as to render it of little if any weight, and in that tbe favorable verdict for tbe plaintiff is tbe result of tbe passion and prejudice of tbe jury. A recital of tbe facts tending to support tbe verdict can serve no useful purpose. A reading of tbe record discloses that there was ample evidence in tbe case' to sustain tbe jury’s findings, that tbe accident and tbe consequent injuries were proximately caused by tbe negligence of tbe motorman, and that tbe plaintiff suffered tbe injuries to which she testified. There is no basis upon which this court can bold that tbe verdict and tbe rulings of tbe court were against tbe clear preponderance of tbe evidence.

*By the Court.*— Tbe judgment is affirmed.