Thompson v. Manhattan Railway Co. , 42 N.Y.S. 896 ( 1896 )

WILLARD BARTLETT, J.

(dissenting). I agree that the first question put to Dr. Olcott on his redirect examination called for evidence that was inadmissible. It assumed that, in the first hospital where plaintiff was treated, she had her back burned or cauterized, and asked the witness for what that treatment was a remedy. This question, however, was not answered, but, in response to a subsequent question by the court to the same effect, the witness said that the plaintiff was undoubtedly treated for a deep-seated injury to the spinal column. No objection was interposed to the question put by the court, but counsel took an exception to it after the answer. Thereupon the learned counsel for the plaintiff said that he would withdraw his honor’s question, and immediately afterwards he asked the witness whether the remedy of burning or cauterizing the back was not applied alone for a violent injury to the spine. To this there was no objection whatever in behalf of the defendant, and Dr. Olcotfc answered “Yes.” It seems to me, from the record, that at this point the plaintiff’s counsel abandoned whatever objection he previously had in mind, by remaining silent when the last question was put and answered. Notwithstanding the absence of objection or exception, we could nevertheless order a new trial, if we deemed the error sufficiently serious; but I think the harm to the defendant was wholly done away with by the further statement of Dr. Olcott, on his recross-examination, that he certainly did not mean to be understood as saying that cauterization of the back was never used except in cases of spinal disease. In my opinion, there is no error disclosed by the record which warrants a reversal of the judgment.

BROWN, P. J., concurs.