#### Willlam C. Wallace, Resp’t, *v.*The Vacuum Oil Co., App’lt.1

*(Court of Appeals,*

*Filed June 2, 1891.)*

Evidence—Expert testimony—Objections.

In an action to recover damages for injuries caused by defendant’s negligence, a physician was asked by plaintiff’s counsel: “Assuming the man’s age to be from fifty-eight to sixty years of age, and judging from that and from the whole history of his case and what you have learned of it in all ways, would you say that it is your opinion that the trouble of the heart is likely to improve to any extent in his case or not ?” Defendant’s counsel objected to the question as immaterial and incompetent. *Held,*that while the question was objectionable as calling for an opinion based upon the witness’ knowledge of the plaintiff’s physical condition and might not be predicated solely upon the facts in evidence, and allowed him to state possible consequences, yet as the objection did not state these grounds and give the examining counsel a chance to change its form, and as the question was not altogether an improper one, the evidence was properly admitted.

Appeal from judgment of the supreme court, general term, fifth department, affirming judgment for plaintiff entered upon a verdict at circuit.

*Marsenus H.*Briggs, for app’lt; *M. B. Fenner*and *Geo G.*Wollcott, for resp’t.

1

 Affirming 35 N. Y. State Rep., 697.

Gray, J.

The appellant relies upon the point that, in the admission of certain evidence the trial court materially erred. The action was brought to recover damages for personal injuries, of a severe and permanent nature, received by plaintiff from an explosion of naptha, which had leaked into the city sewers from a defective pipe belonging to defendant. The physician who attended the plaintiff was examined as a witness, and gave evidence concerning the nature and duration of the injuries. The errors in the rulings, which were insisted upon before us, the counsel finds in the course of the examination of this witness. He was asked:

Q. Assuming the man’s age to be from 58 to 60 years, and judging from that and from the whole history of his case and what you have learned of it in all ways, would you say that it is your opinion that the trouble of the heart is likely to improve to any extent in his case or not ?

Objected to as immaterial and incompetent.

*442Received. Exception.

A. I think it is not likely to improve.

Q. The same question in regard to his neck and spine and the position of his head, what do you say in regard to that trouble, from your history of the case and your experience with it ?

Objected to, as immaterial and incompetent.

Received. Exceptions

A. The spinal trouble would improve were it not for the fact that he is obliged to carry himself in this condition. That will keep up an irritation of the spine continually, because this stiffening cannot be removed.

It is to be observed that the objection does not specify the grounds for excluding the question, or in what respects the evidence, called for by the question, is improper, and it is in effect general in its nature. As a general objection, it may be conceded that it would suffice if the question was altogether an improper one or the evidence called for, in its nature, quite inadmissible. But we cannot say that The witness was qualified to give his opinion upon the natural and reasonably certain consequences in the future to be expected from the physical injuries and disturbances from which the plaintiff suffered, and such evidence would be properly admitted. He might also have properly given his opinion upon a hypothetical case, presented by a question which resumed the facts disclosed by the evidence. The objectionable feature in the questions, as asked, consisted in the counsel’s calling for an opinion based upon the witness’ knowledge of the plaintiff’s physical condition, which he may have derived from outside sources, and might not be predicated solely upon the facts in evidence; and the question allowed the witness to state possible consequences, and such as were speculative and not reasonably certain. But had the objection to the questions stated these grounds, the examining counsel, if he desired to press the examination in that line, might have recognized its correctness and have changed the form of his question, eliminating the objectionable elements. In the case of *Strohm*v. *R. R. Co.,*96 N. Y., 305, as in other cases cited from the reports of this court, the grounds of the objection were specified. That mode of procedure, in confining the examination of a witness within strict, legal limits, is proper and it is the one which we have endeavored to emphasize. *Turner*v. *City of Newburgh,*109 N. Y., 301; 15 N. Y. State Rep., 93.

The judgment and order should be affirmed, with costs to respondent

All concur.