Gregory v. Acme Road Machinery Co. , 162 N.Y.S. 574 ( 1916 )

Kruse, P. J.:

The question here is whether the plaintiff may be compelled, under the provisions of section 873 of the Code of Civil Procedure, to submit to an X-ray examination in connection with the usual physical examination before trial in an action for personal injuries.

The Special Term held that the court has no power to order plaintiff to submit to the taking of an X-ray picture, and I think that holding is correct. If it were absolutely certain that plaintiff would not be injured by the taking of the radiograph, I think he might be compelled to submit to the same in aid of the physical examination. It is true that the expert who it is proposed shall take the radiograph states in his affidavit that with his apparatus there is no danger of burning or of subjecting the plaintiff to any bodily injury. But it is well known that persons have been burned and seriously injured in taking such radiographs and the expert concedes that where an operator is not experienced and has not extensive knowledge of radiography a person may be burned by the ignorance of the operator and by too long exposure.

We are clearly of the opinion that the plaintiff cannot be required to take the hazard of such an examination. This is not the taking of an ordinary photograph which could do no harm to the subject. A want of attention, care and skill upon the part of the operator might result in serious injury to the plaintiff, and that hazard the plaintiff should not be required to take, even if the provisions of the section were adequate to compel him to do so.

A further discussion of the question seems unnecessary. The conclusion here reached is in accord with the reasoning in Mizak v. Carborundum Co. (75 Misc. Rep. 205, affirmed by this court, 151 App. Div. 899), and of the Third Department in Lasher v. Bolton’s Sons (161 id. 381).

The order should be affirmed, with ten dollars costs.

All concurred, except Foote, J., who dissented in an opinion.