#### Atkins *v.*Manhattan Ry. Co.

*(Supreme Court, General Term, First Department.*

June 6, 1890.)

1. Damages—Expert Testimony—Speculative Damages.

In an action for personal injuries, testimony by a medical witness as to what results are likely to flow from the injuries is inadmissible.

8. Evidence—Expert Testimony.

In an action for personal injuries, testimony by a physician, who had no knowledge of plaintiff’s medical history prior to the accident, that he treated her for certain symptoms due entirely to the injuries, is inadmissible.

Appeal from circuit court, New York county.

Action for personal injuries by Minna Atkins against the Manhattan Railway Company. Judgment for plaintiff. Defendant appeals.

Argued before Van Brunt, P. J., and Daniels and Brady, JJ.

*Davies & Rapallo, (Sami. Blythe Rogers,*of counsel,) for appellant. *Sullivan*<fi *Cromwell, ( W. J. Curtis,*of counsel,) for respondent.

*433Van Brunt, P. J.

This action was brought to recover damages for personal injuries alleged to have been sustained because of the negligence of the defendants. The only questions submitted upon this appeal arise upon exceptions to the admission of questions relating to the permanency of the injuries received.

The following question was asked of one of the medical witnesses by the plaintiff: “Tell the jury what results are likely to flow from the injuries from which Mrs. Atkins was suffering on the 3d of January, 1888?” This question was duly objected to, and the objection overruled. This was clearly error. This form of question has been so often condemned that it seems somewhat remarkable that it should still be persisted in. In the cases of *Johnson*v. *Railroad Co.,*4 N. Y. Supp. 848; *Strohm*v. *Railroad Co.,*96 N. Y. 306; and *Griswold*v. *Railroad Co.,*115 N. Y. 61, 21 N. E. Rep. 726,—such a form of interrogatory is expressly condemned.

There was another class of expert evidence, which was admitted under objection, which was equally obnoxious to the rules of evidence. The physician had testified that he had never seen the plaintiff before she was hurt, to attend her professionally; that he had no personal knowledge of her medical history prior to the accident, except that which he gained from her in questioning her when he first saw her, and subsequently. No evidence was given as to what the plaintiff had told the physician, and this question was asked: “For what have you treated Mrs. Atkins? What symptoms have you treated her for during the time intervening between the 3d of January, 1888, to the present time, due entirely to the injuries she received at the time of the accident?” This question was duly objected to, and objection overruled. This question allowed the witness completely to usurp the functions of the jury. It left the witness to determine what injuries the plaintiff had received from the accident. It left the witness to determine what her previous condition had been, without the jury having any knowledge upon what such determination was based; and the question also made the witness testify, not as to an opinion, but to the absolute facts that the symptoms arose from the injuries which the physician assumed the plaintiff to have received; but what those were which the physician assumed, the jury were entirely ignorant. In fact, throughout the whole of this case the medical experts were allowed to testify without the jury having the slightest information as to upon what such evidence was founded. The judgment and order appealed from must be reversed, with costs to the appellant to abide the event. All concur.