Madsen v. Utah Light & Railway Co. ( 1909 )

ERICK, J.

Appellant brought this action to recover damages for personal injuries. In his complaint he, in substance, alleged: That at a certain time and place he was a passenger on one of respondent’s street cars; that he informed the conductor that he desired to alight at a certain street crossing; that when the car approached the crossing in question it slackened speed and was running slowly; that appellant then left the inside of the car and went onto the rear platform, and from there stepped onto the car step with a view of alighting therefrom; that the ear did not stop at the crossing, but at about the time he reached the same it suddenly increased its speed, which caused the appellant to fall from the car step to the ground, by reason of which he was greatly injured. Respondent denied all acts of negligence and pleaded contributory negligence. A trial to a jury resulted in a verdict in favor of respondent. The court entered judgment upon the verdict, and the appellant presents the record on appeal.

The principal assignments of error, and on which appellant strenuously insists, relate to the admission of certain evidence over appellant’s objections. The first error to be noticed arose as follows: After appellant had testified and given his version of the accident and detailed the cause and extent of his injuries, the defendant called Dr. Yan Cott as a witness; who, in answer to respondent’s counsel, testified, in substance: That he was a physician and surgeon; that he had been engaged in practice for over five years; that at .the time of the accident he was engaged in practice in Salt Lake City; that he was not a member of the medical staff of respondent, nor was he employed by it as an assistant; that at times, in cases of accident, whén he was called on, however, he had done some emergency work for respondent when respondent’s regular surgeons could not be obtained; that on the evening of April 18, 1907 (the date of the accident complained of), the witness was requested by Dr. Landenberger, one of respondent’s regular surgeons, to go to the home of appellant. Questions were then asked and answered as follows: “Q. When you did things of that kind, state whether or not it was part of your duty, when making a call in an emergency case for the Utah Light & Railway Company, to obtain a record or statement. A. Yes, sir; it was. ■ Q. Obtain a record or statement of the accident and how it occurred, and turn it into the company? A. Yes, sir. Appellant’s Counsel: I object to that as being incompetent, irrelevant, and immaterial, and move to strike out his answer. The Court: The motion to strike out is denied. Appellant’s Counsel: Exception.” Tbe doctor further testified that he had a conversation with, appellant and obtained a statement from him on the evening of the accident; that he reduced the statement to writing, read it over to appellant; that appellant signed it; that that ■the statement was the one then exhibited to the witness, which will hereafter appear in full. Counsel for respondent then asked the witness: “I wish you would state whether ■or not, in that conversation with reference to how this aeci-■dent occurred and the things that appear on that statement, you obtained any information from the plaintiff that was neccessary for you to obtain in order to treat him if you had ■desired to do so ?” Counsel for appellant interposed the following objection: “Objected to as incompetent and irrel•evant, calling for a conclusion.” The objection was overruled and exception noted. The witness answered: “No, ■sir.” “Q. At the time you had the conversation resulting in putting this — making this statement, was Mr. Madsen '(appellant) conscious and rational, or not? A. Yes, sir. Counsel for Appellant: I object to that as incompetent, irrelevant, and immaterial, and move to strike the answer out. The Court: Overruled. You may have the benefit of the objection as though made before the answer. Appellant’s Counsel: Exception. Q. Have you any other source and cause of obtaining the information you put here except what he told you ? A. No, sir. Q. Where and what was he doing when you went to the house? A. He was sitting in a chair, if I remember correctly. Q. Dressed or undressed? A. He was dressed. Q. Did you make any examination, or attempt to, of his physical condition? A. Yes. I asked him where he was injured, and I took hold ■of his knee and started to move it, and there was considerable pain there, and he could not move the limb very well without considerable pain.” Then the doctor stated that he could not examine the patient satisfactorily and made arrangements with D'r. Landenberger over the ’phone to make a further examination the following morning. The doctor then went on and stated that he and Dr. Landenberger made a further examination of appellant the following morning, and detailed what they then discovered. We shall refer to the examination that was made the following morning hereafter. The doctor was cross-examined by counsel for appellant, and, in referring to the doctor’s visit and its purpose, the following, among other, questions were asked and answered: “Q. Mr. Madsen (appellant) understood you were a physician, did he? A. Yes, sir. Q. And that you came there for the purpose of treating him? A. Yes, sir. Q. And to render any medical assistance that the case required? A. Well, I did not state that to him— Q. He understood that, did he ? A. I do not know. Q. Did you tell him you would render any assistance that was necessary ? A. No, I did not tell him. - Q. You went right to work, however, and commenced to inquire about the case ? A. Yes, I told him I was sent by the Utah Light to see about his injury.”

The foregoing is a substantial transcript from the original bill of exceptions giving the questions and answers thereto', the objections of counsel, and rulings of the court, with the exceptions thereto. For convenience we shall here insert the statement that the doctor testified he obtained from appellant on the evening of the accident, and which was, over appellant’s objection, admitted in evidence. This statement was exhibited to appellant when he was a witness on the stand, and he admitted that the signature was his. The statement, in full, is as follows:

“Salt Lake City, April 13, ’07. Mr. N. P. Madsen. Employee U. L. & Ry. Co. 63 years. Injured 6:30 p. m. on 6:15 car leaving Main. I was coming home on the Calder’s Park car and I was standing on the lower step, expecting to get off on the north side of Ninth South, but the car kept on 'going and I got off. The car was going so fast it threw me to the ground. I did not tell the conductor to stop on the north side, hut thought he always did stop on the north side, and that is the reason I jumped. When I jumped I fell on my left side and could not get home without assistance.”

Appellant’s counsel made the following objection to the admission of this statement: “I object to that on the ground it is incompetent, irrelevant, and immaterial, and under the statute as being a privileged communication.” The court overruled the objection, and counsel duly excepted.

From the foregoing it will be observed that, while counsel did not refer to the privilege in making his objections to Dr. Van Cott’s testimony, he nevertheless made this objection when the statement obtained by the doctor from appellant was offered in evidence. The questions raised therefore are: (1) Whether, in view of the state of this record, the assignment of ei'ror referred to is properly before us; (2) if it is, whether the record discloses that, when the statement was obtained, the relation of physician and patient existed between Dr. Van Cott and appellant, and (3) if this be so, whether the statement, when fairly construed, comes within the statute as a privileged communication. As to the first two propositions, we entertain serious doubts; but in view that the trial court evidently understood the object and purpose of counsel’s objections, and as counsel for both parties have treated and argued the assignment as being before us, we shall so treat it, and thus address ourselves to the third and last proposition, namely, is there anything contained in the statement of appellant which is protected by the statute? Subdivision 4 of section 3414, Comp. Laws 1907, reads as follows:

“A physician or surgeon cannot, without the consent of his patient, he examined in a civil action as to any information acquired in attending the patient which was necessary to enable him to prescribe or act for the patient.”

While the courts are not in strict harmony in concretely applying the provisions of statutes similar to the foregoing, yet they practically all agree that, in order 1 to bring the information referred' to in the statute within its provisions, it must be made to appear: (1) That the information was obtained during the existence of the relation of physician and patient; and (2) that the information, however acquired, was necessary to enable the physician or surgeon to prescribe for or act professionally for the patient. The statute should receive a fair and reasonable construction and should be applied and. enforced so as to accomplish tbe purpose for wbieb it manifestly was designed. It seems quite clear that in adopting tbe statute tbe legislature did not intend that all information, whether by communication or otherwise, which is obtained by physicians from their patients, should be privileged, but such information only as may reasonably be necessary to enable the physicians to apply their full professional shill for the benefit of their patients. The statute is not intended as an aid to conceal or smother the truth in a court of justice; but its object is to protect as privileged all that may be said by a patient to his physician while the relation of trust and confidence exists, and, further, to protect all the information a physician obtains through his senses of touch, sight, or otherwise, during such relation, provided the communication or information was reasonably necessary to enable the physician to accomplish the purpose for which the relation of physician and patient is called into existence. As we have said, the cases are not in strict harmony as to just what information or communications come within the statute. The main difficulty arises in those cases where there was no direct evidence of whether the information in question was or was not necessary to enable the physician to discharge his professional duties to the patient. As may well be conceived, the question whether the particular information in question in .any case was or was not necéssary cannot always be left to the physician’s statement, or to what is called direct evidence; but, as is well said by the Supreme Court of Missouri, in State v. Kennedy, 177 Mo. 129, 75 S. W. 987, the physician “must, as a general rule, under the statute, determine for himself whether the information acquired by him from his patient is necessary for him to prescribe for such patient, and, in the absence of some showing to the contrary, as in the case at bar, the presumption must be indulged that the information in question ivas necessary for that purpose.” Munz v. Salt Lake City, 25 Utah 220, 70 Pac. 852, is, in substance, to the same effect.

The foregoing statement commends itself to our judgment, with the exception of the unguarded expression that, when there is no showing to the contrary, the “presumption must be indulged,” etc. A moments’s reflection will show that the law does not raise a presumption either way, but leaves the question as one of fact. Where therefore it is made to appear that a physician prescribed for or treated a person, or that the physician obtained 2 any information from such person for the purpose of doing so, the inference arises that such information was necessary, and, unless this inference is rebutted, the ultimate fact that it was necessary may be assumed to be established. When, however, this inference is negatived by the testimony of the physician disclosing to the court just what the facts were under which the information was obtained, then it may be that the inference is entirely overcome. Quite true, the testimony of the physician may not, in all cases and under all circumstances, be conclusive, and the court, may still be justified in holding the information necessary, the statement of the physician to the contrary notwithstanding. If the rule were otherwise, the physician would have it in his power to either enforce the statute with respect to all information, or to ignore it with respect to all. This would be unreasonable.

The testimony of the physician from which the court may determine whether the information was or was not necessary to enable the physician to act is always important, and, we think, should receive fair and full consideration; but in determining its weight and effect it should be considered in the light of all the facts and the surrounding circumstances. In some cases and under some circumstances the statement or information obtained from the patient may be self-explanatory, and thus a mere inspection of it, if written, or merely having it stated, if oral, may be sufficient to enable the court to determine whether the information is privileged or not. In other cases the doctor’s statement as to whether the information was necessary or not may be conclusive upon the subject. Where therefore evidence of this character has been either admitted or excluded by the trial court, and its ruling’s are attacked and presented to the appellate court for review, the reviewing court must, from the record presented, of necessity, determine two things: (1) Did the trial court err in either admitting or excluding the evidence? And (2) if it did, is the error prejudicial? The first question now to be determined therefore is: Does the statement, or any part thereof, made by appellant to Dr. Van Cott, come within the statute as privileged? A mere cursory inspection of the statement discloses that it contains nothing except a brief narrative of what occurred at a certain time and place. We think it is also apparent that, at least upon its face, nothing is disclosed of a confidential nature, nor of any fact or facts, which, to the ordinary mind at least, would seem necessary for a physician to know in order to prescribe for or treat the person making the statement for the injury disclosed thereby. In fact, no injury is even referred to in the statement in question; but whether one existed is left entirely to inference. In addition to this, Dr. Van Cott testified that he obtained no information of the character which is protected by the statute. If this be true — and there is nothing in the record showing the contrary — the statement in question is not privileged. We are aware that there are cases which seem to go to the extent of holding that, when the relation of patient and physician is once conceded, about everything which has any. relation whatever to the accident or injury in question comes within the statute. We shall not attempt to cite nor refer to a large number of cases, but shall refer the reader to a few only as fair types. The following are cases which seem to favor the doctrine last above stated: Battis v. Railway Co., 124 Iowa 623, 100 N. W. 543; Keist v. C. G. Ry. Co., 110 Iowa 32, 81 N. W. 181; McRae v. Erickson, 1 Cal. App. 326, 82 Pac. 209; Pennsylvania Co. v. Marion, 123 Ind. 415, 23 N. E. 973, 7 L. R. A. 687, 18 Am. St. Rep. 330.

It is only fair to state that, in all of the foregoing cases, it was either affirmatively made to appear that the physician regarded the particular information in question necessary, or that such fact arose as an inference deduced from other facts. "Upon the other hand, there is also a large number of cases from very able courts which take, what seems to us, a more rational view. As types of that class, we cite the following: Green v. Metropolitan St. Ry. Co., 171 N. Y. 201, 63 N. E. 958, 89 Am. St. Rep. 807; Griffiths v. Same, 171 N. Y. 106, 63 N. E. 808; Green v. Terminal Ry. Ass’n, etc., 211 Mo. 18, 109 S. W. 715. In the case of Green, v. Metropolitan St. Ry. Co., supra, a statement in its effect just like the one now under consideration was the subject of - review. After stating the manifest purpose of the statute, Mr. Justice Gray, at page 204 of 171 N. Y., at page 959 of 63 N. E. (89 Am. St. Rep. 807), says: “Surely it could not have been intended that any truthful version of a narrative of the events leading to an accidental injury should be excluded and that was all this question called for, as it had come from the sufferer’s lips, and when fresh in his recollection. It is rather more consonant with the requirements of justice that no "witness should be prevented from giving such evidence.” Erom the doctor’s testimony in the ease referred to, it was left very doubtful whether he deemed the information received by him necessary 'to enable him to prescribe for the injured person. There is a dissenting opinion based, however, “ upon the fact that the information was deemed necessary by the doctor, and for that reason it is claimed that the case is clearly distinguishable from the case of Griffiths v. Metropolitan St. Ry. Co., supra, in which the doctor testified, as in this case, namely, that the information was not necessary.

The case of Green v. Terminal Railway Ass’n, etc., supra, is a very recent case, decided in 1908. In that case about all the important cases upon this question are examined and reviewed. In our judgment the true test is applied in that case. The court, in referring to the statute, emphasizes the fact that it is manifest from the statute itself that not all information that a physician obtains from his patient is privileged, but only such as is necessary to enable tbe physician to discharge his full professional duty to his patient; that the patient may disclose many matters to the doctor that in no way are of assistance to the doctor in discharging his professional duties, and, where such is the case, such matters are not privileged because not within the provisions of the statute. The Missouri Supreme Court, however, in effect holds that, to some extent at least, the question whether particular information under peculiar circumstances was necessary for the doctor to know or not is a judicial question, and that the fact that it may not be easy of application in all cases in no way affects the duty of the court to determine when it shall be applied and when not in accordance with the manifest intent and purpose of the statute and in furtherance of justice. If th refore, in order 'to enable the doctor to prescribe for the injured patient, it becomes necessary for the doctor to know how an accident occurred, and he obtains the information while the relation- contemplated by the statute exists, the information is privileged, although it may be “a narrative of the events leading to an accidental injury.” This, it seems to us, should be the test. If the information is reduced to writing, it may upon its face show whether it was or was not necessary, and the court may declare it either within or without the statute. Again, the trial court may be justified in accepting the doctor’s statements, and from them determine whether the information was or was not necessary, and again declared the result as before. Upon the other hand, the court may, from 'all the circumstances, determine tliat the information was necessary, notwithstanding the doctor’s statements to the contrary, and thus exclude the information as privileged. Neither the trial court nor this court therefore should arbitrarily either admit or exclude all information which may relate to the accident or injury; but, in determining whether specific information should be excluded or admitted, the purpose of the statute should be kept in mind, and if, in the judgment of the court, the particular information in question comes within tbe statute, it should be excluded, and, if otherwise, it should be admitted in evidence.

Let us analyze the statement made by appellant and see whether there is anything in it that, by reason of the privilege contemplated by the statute, the doctor was not authorized to disclose. There certainly is nothing 3 in the first sentence commencing with, “I was going home,” etc., which could possibly be tortured into1 a meaning which would bring it within the privilege. What information is there in that sentence which would be of assistance to even the dullest intellect in prescribing for a person who “got off” a car while it “kept on going?” The sentence which follows, in which appellant says that when he got off “the car was going so fast that it threw me to the ground,” likewise contains nothing except a narrative of what was a most natural occurrence. It may be said that, under some circumstances, it might be of some assistance to the physician to explain certain symptoms if he were told whether the injured person fell against some object, or whether he was precipitated and fell a considerable distance or with much or little force, and matters of that kind; but there certainly is nothing of this character disclosed by appellant in the foregoing statements. ■ All that he says is that he fell to the ground. It certainly cannot be claimed that in the sentence succeeding the foregoing there is anything that can possibly be privileged. To so contend would be to make a farce of the statute. Coming now to the last sentence, namely, “When I jumped I fell on my left side, and could not get home without assistance.” Does appellant here refer to any injury except by inference? Where was he injured, if at all? From this meager narrative of what appellant did and what happened to him at a particular time, can it reasonably be contended that a physician could have obtained information which would assist him to intelligently treat appellant for some injury or injuries he might have sustained? We cannot yield assent to such a contention. To hold that such information, obtained under such circumstances, is privileged, would, in our judgment, make the privilege absolute, aud not conditional, as is contemplated by the statute. This would result in declaring the statute to mean one thing when its plain language clearly means something else. This we have no authority to do. In our opinion therefore, and in view of the circumstances disclosed by the record before us, the statement in question is not privileged, and the court committed no error in admitting it in evidence.

The information that was obtained from appellant by Drs. Landenberger and Van Cott on the following morning, however, stands on a different footing. Appellant fully submitted himself into the hands of these 4 two doctors, and permitted them to administer an anaesthetic so that they might make a more thorough examination of his person. The doctors certainly made the examination for the purpose of obtaining information to-enable them to treat appellant’s injury. That they might do so intelligently they desired to learn its full scope and effect, if possible. They were thus permitted to make the examination for that purpose. That they also had another purpose in mind, namely, to learn the scope and effect of the injury for the benefit of the' respondent, in no way changed their relation to the 'appellant. No1 doubt respondent, through its agents, had a right to obtain from appellant all the information with respect to the cause and' extent of the injury he was willing to impart to them; but. in obtaining such information respondent had to- exercise some discretion in selecting its agents. If it selected two-skilled physicians and surgeons, and thus led appellant to-believe or assume that those physicians sought information from him with a view of prescribing for his injuries, then such information is privileged under the statute, regardless, of the fact that the doctors sought the information for the further purpose of disclosing it in a court of justice in case-appellant brought an action for damages against the respondent. If the doctors desired to obtain information for the latter purpose only, they should have explained the matter fully to appellant, and should have told him that. they sought the information for the purpose of imparting it to respondent, and not for the-purpose of aiding him. If, under the latter circumstances, the injured person permits an examination, or imparts information, no confidence is abused, and no statute is invaded, and hence he may not be heard to complain; but persons who are injured by accidents of any kind should be treated fairly by the skilled physicians who seek information of the character protected by the statute. The statute is plain, and its purpose is just and humane. It seems to us that it is the duty of the courts to give the statute full scope and' effect; but, in doing so, to prevent, if possible, either party from gaining an advantage contrary to the true spirit and intent of the statute. We are clearly of the opinion that the court erred in permitting Drs. Landenberger and Van Cott to testify to what the appellant may have told them, and to what they discovered in making the examination of his person on the morning after the accident.

It is contended by respondent, however, that, although we should' determine that the court did err in admitting the testimony of the two doctors just referred to, such error would not be fatal to the judgment for the reason that the evidence which was admitted at most related to an issue which was made immaterial, because the appellant had not established negligence on the part of respondent, and that the jury, by returning a general verdict for respondent, necessarily so found. The general rule undoubtedly is to the effect that, when the court admits incom-potent 5 evidence upon a material issue, all the party against whom such evidence is admitted is required to do is to produce the record disclosing such to be the fact and' his objection and exception, and from this the legal inference arises that the error is prejudicial to such party’s rights, and hence constitutes reversible error. The opposite party may, however, show from the record, if he can, that the error is nevertheless not fatal to the judgment. The question then arises, which, in the nature of things, must be a judicial one, whether, in view of the record which is presented to the reviewing court, the alleged error is prejudicial, or whether the judgment, notwithstanding such error, should stand. In McPhail v. Buell, 87 Cal. 115, 25 Pac. 266, it is, in substance, held that error in admitting evidence will not be sufficient to reverse the judgment, if it is made to appear from the record that appellant in no event was entitled to recover. In Clavey v. Lord, 87 Cal. 413, 25 Pac. 493, it is held that the admission of incompetent evidence against a plaintiff which relates to au issue, which is made immaterial by reason that another issue which is vital to the right of recovery is found in defendant’s favor, will not be sufficient to reverse a judgment. In re Kennedy, 104 Cal. 429, 38. Pac. 93, the rule is stated in the syllabus as follows: “Error in the admission of evidence is ground for reversal, unless the appellate court can see from the record that appellant was not injured.” In 2 Spelling, New Tr. and App. Pro., p. 1484, the author says: “Whether an error has prejudiced a party is a judicial question, to be determined in each case according to the character of the error and circumstances shown by the record. Being such, and the question of whether or not it has been prejudicial in its consequences being uniformly decided by reference to the record, it is difficult to see any place for the operation of what is called a ‘presumption of prejudice.’ As a matter of practice, cases are not reversed for error, unless, and until, from its character, and in view of the whole case presented by the record, there is at least a possibility of injury.” This, we think, is what is meant by section 3285, Comp. Laws 1907, which provides that “no exception shall be regarded .unless the decision excepted to is material and prejudicial to the substantial rights of the party excepting.” Nor can it change the rule because, as in this case, all the evidence is not certified to this court. A party ipay present only so much of the proceedings had in the trial court as will show and illustrate the ruling and consequent error of which he complains. If in doing so the record as presented by the complaining party only shows that a material error has been committed, and the opposite party does not supplement appellant’s record so as to make it appear that the alleged error is not prejudicial, the appellant must prevail, and the judgment must be reversed. Where, however, the record as presented by the appellant, whether it contains all or only a part of the evidence and proceedings, upon its face shows that the error 6 complained of is in fact not prejudicial, and that no other judgment is permissible in view of the whole record as presented, then the judgment must stand. This must be the result regardless of whether' the prevailing party brings up that portion of the record which discloses the fact that the error is not fatal to the judgment, or whether it is made to appear from the record as prepared by the appellant. Such a rule reflects justice not only upon the litigant who is entitled to enforce a judgment which has been rendered in his favor in substantial compliance with the forms of law and is meritorious, but it also reflects justice upon the general public, which must, in a large measure at least, contribute to the expense of maintaining courts.

Applying the foregoing rules to this case, we cannot see wherein appellant can justly complain. His testimony upon which he relies to establish respondent’s failure to1 discharge its duty is in the record. If from this testimony it is not made to appear that the respondent was 7 guilty of negligence or in any way derelict in discharging any duty which it owed to appellant at the time of and under the circumstances the accident occurred, then the appellant cannot recover, upon the ground that he has failed to make a case; and if he has failed to make a case against the respondent, then the question of whether the appellant was injured, or the extent thereof, is immaterial. That the jury were fully justified in finding against appellant upon the issue of respondent’s negligence, to our minds, is not left in doubt when reference is had to appellant’s own statements made under oath when on the stand as a witness in his own behalf. He, in substance, testified: That on the 13th day of April, during the daytime, he was a passenger. on one of respondent’s street cans going south; that he told the conductor when he paid his fare that he wanted to get off at Ninth South Street; that on approaching the crossing of said street the conductor “hind of slackened the car;” that the conductor did not give any signals “that I know of;” that before the speed was slackened the car was running at ordinary speed; that in nearing the crossing the car slowed down, and “it wasn’t running very fast,” and he went from the inside of the car and stood on the rear platform, and from there stepped onto the car step-. “Q. Then what happened while you were standing on the step? A. Then the car started to the south side. Q. In what manner did it start? A. Just as tfbual, I guess, only she was quick to start.- Q. Then what happened to you when the car started quickly? A. Then I fell off.” On cross-examination appellant said: That the car did not stop, but was in motion all the time; that he did not see nor hear that the conductor signaled or told the motorman to stop the car; that he had it in mind that the car stopped on the north side of the street whether there was any one to get on or off the car or not.

The foregoing, in substance, is all the evidence there is upon the question of respondent’s negligence. From what fact or facts disclosed by the foregoing statements could the jury infer that either the conductor or motorman was negligent? Concede that appellant told the conductor that appellant wanted to alight at Ninth South Street. Concede farther that the car slackened its ordinary speed in approaching that street. Still there is absolutely nothing to indicate that the conductor was not going to stop the car when the usual stopping place at that point was reached. What right had a jury to infer that the north side of the street, rather than the south side, was the usual place for stopping ? But appellant says he assumed this. How would this impose the duty to stop upon respondent? The fact remains that, so far as the evidence discloses, neither the conductor nor the motorman knew appellant wanted to alight on the north side of the street. Merely to tell the conductor that appellant wanted to alight at Ninth South Street might mean either side, and, so far as imposing any legal duty upon the conductor was concerned, it meant the usual stopping place at that point. Appellant’s right to recover is grounded upon negligence, and, unless negligence can be inferred from the acts and conduct of respondent’s employees who were in charge of the car in question, appellant cannot recover. Surely, so far as the evidence discloses, the motorman did nothing of which appellant could complain. Nothing is made to appear that the motorman knew that appellant was standing on the step, when, as appellant says, the car was “quick to start,” after it had slackened speed. Nor is there any fact shown from which it may be inferred even that the conductor knew; but, if this were inferred, nothing is made to appear that the conductBr could' have prevented the car from crossing to the other side of the street. Can negligence be inferred from the fact that the car, on approaching the crossing, slackened speed? Is it negligence to do this when a car is approaching a street crossing on which persons may be passing to and fro, although the car is not scheduled to stop' at that point? Again, is it negligence, after slacking speed in approaching a crossing, to again increase the speed before coming to a full stop?' There may be circumstances when to do so might be a question of fact; but certainly there is nothing in this case which would justify any reasonable mind to infer negligence from what appellant says occurred in view of all the circumstances as he relates them. The following cases, which in their facts are as nearly parallel with the case at bar as can be found, clearly sustain the foregoing conclusion: Blakney v. Seattle Electric Co., 28 Wash. 607, 68 Pac. 1037; Sims v. Met. St. Ry. Co., 65 App. Div. 270, 72 N. Y. Supp. 835. See, also, Nellis on Street Railroad Accident Law, pp. 134, 210, and Nellis on Street Surface Railroads, pp. 451, 452. At all events, the jury were fully justified to find the issue of negligence in favor of respondent. This issue not only was the vital issue, but it was one to which all other issues were secondary and subordinate. The appellant cannot recover if be failed to sustain this issue. True, be might have failed eren if be sustained tbis issue; but we tbink it is quite clear that tbe verdict was not, and, in tbe nature of things, could not have been, against appellant upon tbe ground of contributory negligence. But assuming that.it was, then again tbe verdict is thoroughly justified by tbe facts. Nor was there anything to which tbe two doctors testified that was relevant to tbe issues of either negligence or contributory negligence; but that portion of tbe testimony which we hold was erroneously admitted related entirely to the injuries and consequent damages appellant claimed to have sustained. If appellant failed to establish the issue of negligence, the question of whether he was injured or damaged was immaterial, and hence any error that may have been committed in admitting evidence on the latter issue was error without prejudice and cannot affect the judgment.'

We remark further that it is likewise true that the statement of Dr. Van Cott which was admitted in evidence may have reflected upon appellant’s contributory negligence; but, if this be conceded, this in no way affected the issue of respondent’s negligence. The statement in writing which appellant gave to Dr. Van Cott, when compared with appellant’s testimony at the trial, differed only in this: That in the written statement it is stated that appellant jumped and fell, while in his testimony he said he fell from the car. If, in view of all the circumstances detailed, he jumped, he clearly was guilty of contributory negligence; but if he did not jump, but fell from the car, then, nevertheless, there is nothing disclosed from his testimony, nor from the surrounding circumstances, from which the jury or any one else could infer negligence upon the part of respondent’s servants which could reasonably be said to have been the proximate cause of appellant’s fall and consequent injury.

For the reasons above stated, the error which it is contended the court committed in permitting Dr. Van Cott to testify that appellant was conscious and rational when - he gave and signed the statement is also immaterial. As we have already pointed out, there was no essential difference between appellant’s testimony at the trial and that contained in the written statement. If the statement therefore was substantially true, and the jury was required to assume it to be so since he practically repeated it under oath, it cannot affect the judgment in any way whether the court erred in this regard or not! Moreover, it is manifest that the verdict of the jury is not based upon this statement. We have thus given the appellant what seems to us to be full benefit of all his alleged errors. While it is our duty to pass upon all material assignments of error and to give them full scope and effect, it is equally our duty to refuse to reverse a judgment where it is made to appear from the very record presented for review that the errors assigned, in view of all the facts and circumstances disclosed by the record, are not prejudicial to the rights of the complaining party.

In conclusion we desire to add that, in order to avoid any misconception of the scope of our holding, we repeat that we refuse to reverse this judgment upon the sole,ground that in our judgment the errors committed by the court in the admission of the testimony of the two doctors, in view of the peculiar circumstances of this case, were entirely immaterial, and hence not prejudicial errors. Further, that the statement which was made by appellant to Dr. Van Cott, and which we have held not to have been prejudicial, is held not to have been so: (1) Because there is nothing in the statement itself from which it is reasonable to assume that it was necessary for the doctor to know, even though he intended to treat appellant; (2) because the doctor testified that it contained nothing to that effect: and (3) because, under all of the facts and circumstances disclosed by tbo record, the trial court was justified in ruling the st-ato ment as not within the statute, and hence not within the privilege. We do not desire to be understood as laying down a hard and fast rule as to when a particular statement is .or is not within the statute; but we hold that that must be determined in each case in accordance with the peculiar facts and cireumstanes and in accordance with the rules referred to in this opinion. ,,

For tbe reasons aforesaid, tbe judgment therefore should be, and it accordingly is, affirmed, with costs to respondent.