#### Angerstein, Respondent, vs. Milwaukee Monument Company, Appellant.

*May 28*

June *25, 1919.*

*Negligence: Sufficiency of complaint: Privilege of physicians and surge071s: Waiver by patient.*

*1.*The privilege granted by sec. 4075, Stats., to physicians and surgeons is a privilege in favor of the patient, and a patient may waive it and have the physician testify in a personal injury action.

2. A complaint alleging that plaintiff, standing in her yard, was struck by a granite chip which flew from a surfacing machine operated in defendant’s monument yard adjacent to her premises, and charging defendant with negligence in failing to properly guard against flying chips, is *held*to state a cause of action.

Appeal from a judgment of the circuit court for Milwaukee county: E. T. Fairchild, Circuit Judge.

*Affirmed.*

This action was brought by the plaintiff for personal injuries which she claims to have received through carelessness on.the part of the defendant.

The monument yard of the defendant company is north of and adjoining the yard of the house where the plaintiff and her husband live. On August 22, 1916, plaintiff, while in the act of removing the wash from a line in her yard, was struck in the eye by a rock chip set in motion by operations carried on by workmen employed at defendant’s machines. She claims that the workmen were operating a surfacing machine and that one of the workmen was using a hammer and chisel on a granite block fifteen feet north of the fence dividing plaintiff’s and defendant’s premises, and that she was standing approximate^ twenty feet away from workmen and machine when she was struck by the rock chip. Plaintiff charges defendant with negligence in failing to protect her properly by screens or other devices from flying rock chips. • She alleges that she has suffered great physical and mental pain since the accident and that she has been since *503then entirely unable to perform her household duties. Defendant denies all of the allegations of plaintiff’s complaint. The civil court jury found the defendant guilty of a want of ordinary care as alleged in the complaint, and found that the plaintiff had been struck by a rock chip and that such want of care of. defendant was the proximate cause of her injuries. Judgment was entered on the verdict, and the defendant appealed from that judgment to the circuit court for Milwaukee county. The circuit court affirmed the judgment of the civil court on the record, and appeal is, taken from that judgment.

For the appellant there was a brief by *Nohl & Nohl*of Milwaukee, and oral argument by *Leo F. Nohl.*

*William O. Meilahn*of Milwaukee, for the respondent.

Siebecker, J.

The defendant assigned error upon the grounds (1) that the evidence of the physicians who treated plaintiff was improperly received; (2) that the court improperly held that the complaint alleged a cause of action for ordinary negligence; (3) that the evidence fails to sustain the finding of the jury that defendant was guilty of actionable negligence; and (4) that the damages are excessive.

The evidence of plaintiff’s physician was properly received. The privilege granted by sec. 4075, Stats., is a privilege of the patient, and plaintiff in the instant case had the right to waive it. *Markham v. Hipke, ante,*p. 37, 171 N. W. 300. The court, within the rule of *Haverlund v. C., St. P., M. & O. R. Co.*143 Wis. 415, 128 N. W. 273, and *Astin v. C., M. & St. P. R. Co.*143 Wis. 477, 128 N. W. 265, was clearly right in holding that the complaint alleged a cause of action for ordinary negligence. It also appears that the trial proceeded in accordance with this ruling and that defendant offered evidence to show plaintiff’s alleged contributory negligence. We find nothing in the record tending to show that defendant was in any way prejudiced by this ruling of the trial court. An examination of the evidence *504discloses that the jury's findings on negligence and the amount of damages awarded are amply sustained by the evidence and cannot be disturbed on appeal.

*By the Court.*— The judgment appealed from is affirmed.