Loveless v. Manhattan Railway Co. , 24 N.Y. St. Rep. 177 ( 1889 )

By the Court.—Sedgwick, Ch. J.

The action was for damages from alleged negligence of defendant’s servants. The question that on the trial was asked of plaintiff when a witness, and that defendant’s counsel objected to, and that related to the declarations of Dr. Freer, was not answered, and the next question, asked by the court, which was different substantially from the first question, was not objected to.

Dr. Stimson, a witness on behalf of defendant, testified on direct examination that he had heard the testimony that there was a rupture of certain ligaments of plaintiff’s leg. The next question was : What have you to say on the testimony you have heard on that subject ? This question was properly excluded, for his general opinion as to the testimony was not evidence. The next question was properly overruled. It was : Does the testimony you have heard on that subject satisfy your mind as to the existence of any such double rupture ? The witness was here asked to weigh the evidence he had heard. This was the office of the jury. Beyond this it did not appear from the question what evidence the witness had heard, or as to what part of the testimony the question was pointed.

The learned counsel for the appellant has urged that the complaint should have been dismissed under the law of the case of Kelly v. The Manhattan Railway Co., 112 N. Y. 443. The cited case sustains the law as charged by the court below, and the facts of this case differ from the facts in the Kelly case in such respects that the judge below was correct in not dismissing the complaint.

Judgment affirmed with costs.

Freedman and O’Gtorman, J. J., concurred.