#### Page *v.*Mayor, Etc., of the City of New York *et al.*

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

June 6, 1890.)

1. Evidence—Expert Testimony.

A surgeon testifying as an expert for plaintiff in an action for personal injuries, having stated that he had heard “most” of the plaintiff’s testimony, was asked the following question: “Take such a fall as he describes here, resulting from a collision of two cars, and the symptoms following that fall, he having theretofore been a sound and healthy man, can you state with reasonable certainty that the consequences that have followed are natural and usual? ” *Held,*that such question should not be allowed, as it permitted the witness to state his conclusions from the testimony, instead of confining his opinion to a supposed state of facts.

8. New Trial—Newly-Discovered Evidence.

Newly-discovered evidence to the effect that prior to the injury complained of plaintiff had been injured in a railroad accident is not available as ground for a new trial, though plaintiff’s counsel stated in the course of the trial that plaintiff had already stated, that he was perfectly sound and healthy before his fall and injury, and that he had received none other, as such statement of counsel will not be deemed a stipulation in the absence of anything to show that it was intended to be such.

Appeal from circuit- court, New York county.

Action by Joshua F. Page against the mayor, etc., of the city of New York and the city of Brooklyn, to recover for personal injuries alleged to have been *827sustained through defendants’ negligence. There was a verdict for plaintiff for $15,000. From the judgment entered thereon defendants appeal. They also appeal from an order denying their motion for a new trial on the ground of newly-discovered evidence to the effect that prior to the injuries complained of plaintiff had been injured in a railroad accident.

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

*W.. H. Clark, (Thos. P. Wickes,*of counsel,) for appellants. *Isaac 8. Catlin,*for respondent.

Brady, J.

This action was brought to recover damages sustained by personal injuries resulting from the defendants’ carelessness. On the trial the plaintiff called Dr. Olcott as an expert, by whom he had been examined in reference to his condition subsequent to the injuries received. The witness stated several examinations, and the condition in which he found the plaintiff on each of such occasions. He was then asked whether he received a statement from him as to how he fell in the car when the injury was received, to which he answered affirmatively. The witness was then asked this question : “Did you hear his testimony upon the witness stand to-day?” to which he responded by saying: “Most of it. Tes, sir.” He was then asked the following question: *“Question.*Take such a fall as he describes here, resulting from a collision of two cars, and the symptoms following that fall, he having theretofore been a sound and healthy man, can you state with reasonable certainty that the consequences' that have followed are natural and usual?” It will have been observed that the question is neither hypothetical in any respect nor founded upon all that the plaintiff said, but “most of it,” which leaves to conjecture how much of it the witness considered to be “most of it, ” and whether if he had heard the whole of it there would have been any qualification of his answer. It was however duly objected to, but was allowed after exception. The answer was predicate of the plaintiff’s statement only so far as the witness had heard it, but was not in form such as allowed a party to attain the result, in form at least, by adopting a hypothetical question, and this is the extent only to which such an inquiry is allowed. If it were otherwise, the witness would be, to a certain extent at least, as he was here, allowed to usurp the functions of the jury, who alone are to trace effects to the cause as shown by competent proof; for example, a collision of cars is proved, and a person in one of them who before the collision is bodily sound is found with a broken limb or serious wounds. The injuries are then *prima facie*the effect of the collision, but the jury are to determine that question on the evidence, and hence the examination of the medical attendant is always as to what was the condition of the patient after the accident. He is *not*called upon to state whether that condition is the consequence natural and usual of the collision such as described. He may state facts and circumstances, but not conclusions, especially when founded upon evidence heard only in part; but may, if an expert, be asked for his opinion upon a supposed state of facts presented in a question. The question itself, here considered as such, is radically defective for the reason that it assumes that the consequences stated flowed from the collision, when in legal effect it was wholly immaterial whether the consequences were natural and usual if they were present and existed, and whether they were or not was a question for the jury. The cases relating to this line of examination carefully preserve the rights of the party to be affected by it from any infraction of the province of the jury as indicated by the rule, which is positive and unyielding, that questions kindred to the one discussed must be put hypothetically, or its equivalent, and thus leave the fact stated in ?t to be found by the jury before the evidence elicited can be applied. See *Uransky*v. *Railroad Co.,*44 Hun, 119: *Gregory*v. *Railway Co.,*8 N. Y. Supp. 525; *Turner*v. *City of Newburgh,*109 N. Y. 309, 16 N. E. Rep. 344. For these reasons the judgment appealed from must be reversed, and a new *828trial ordered, with costs to abide the event. Ordered accordingly. All concur.

APPEAL FROM ORDER DENYING MOTION FOR NEW TRIAL.

Van Brunt, P. J.

An examination of the record in this case does not lead us to any different result from that which was arrived at by the special term. The newly-discovered evidence, because of which a new trial is sought, is not of that character which enables the court to say that its introduction would probably lead to a different result, and the only circumstance disclosed by the record, which has caused any hesitation in coming to the conclusion that the order should be affirmed, is the statement contained in the record by the plaintiff’s counsel during the progress of the trial that the plaintiff had already stated that he was perfectly sound and healthy before his fall and injury, and that he had received none other. If this was to be deemed as a stipulation upon the part of' counsel of a fact, then, clearly, it was not entirely true. But it does not appear that it was intended to be of that character, but a mere statement on the part of counsel of what the plaintiff had previously testified to, and which was not in fact a correct statement of any testimony which he had given. We do not think that although this statement may have been incorrect a new trial should, necessarily, be granted for that reason. The newly-discovered evidence does not seem to be of that gravity which would justify the court in vacating.the judgment which has already been obtained. It may possibly have some effect upon a new trial; but there is not that certainty as to its effect which is necessary to be seen in order to give the defendants the right to a new trial of the issues involved. The order should be affirmed, with $10 costs and disbursements. All concur.