Sarah Coyne, Resp’t, v. The Manhattan Railway Co., App’lt.
(Supreme Court, General Term, Second Department,
Filed December 14, 1891.)
1. Negligence—Evidence.
A physician who was called to attend the plaintiff on the day of the injury, and has continued to attend her to the time of the trial, is competent to give an opinion as to the permanence of the injuries.
'2. Same.
In such case it is not necessary that the question should he hypothetical in form.
Appeal from judgment in favor of the plaintiff, entered upon verdict, and from order denying motion for a new trial.
Action for injuries alleged to have been caused by the negligence of defendant, its servants or agents.
Plaintiff’s evidence tended to show that as she was about to leave defendant’s cars after they had stopped, they suddenly stai'ted with a jerk, which threw her across the back of a seat, and injured her.
Upon the trial Dr. Lewis H. Miller, the physician who attended Mrs. Ooyne, after testifying as to the nature of her injury and the symptoms of which she complained, was asked the following ques*618tian, which he answered under objection of defendant’s counsel: “ Q. In your judgment, and from your knowledge of the case- and the symptoms, has this injury permanently affected Mrs, Coyne ? A. I should say that, of course previous to this 19th day of July I never saw the lady at all, and never treated her, but the fact that her health previous to that was as she claims, Í should say that it had.’’
Julien T. Davies and Samuel Blythe Rogers, for app’lt; Frederic S. Barnum; for resp’t.
Pratt, J.
The only objection seriously urged to the recovery is that it is claimed that Dr. Miller was allowed to give an opinion without a proper foundation having been laid therefor. We are not able to see that the objection is well founded.
He was asked whether in his opinion the injury was permanent. It has already appeared that he was called to attend the plaintiff on the day of the injury, and had continued to attend down to the time of the trial. Her condition during this time had been given with great detail.
Ho one could have a better opportunity to observe her condition, and if it were held that a surgeon under those circumstances could not give an opinion as to the permanence of the injuries, it is difficult to see how that fact could be proved before; a jury.
Appellants argue that opinions can only be testified to in-answer to questions hypothetical in form. Such a rule would sacrifice substance to form. But were the objection well founded it is cured by the answer. For in his testimony the witness, avowedly bases his opinion upon specified facts alleged by the plaintiff.
The jury were, thus notified that the surgeon’s opinion as expressed was conditional upon their finding the facts to be as claimed by the plaintiff,
Judgment affirmed, with costs.
Barnard, P. J., concurs; Dykman, J., not sitting.