Opinion
April 29, 1927.
Appeal from Supreme Court of Kings County.
James G. Purdy [ Arthur K. Wing with him on the brief], for the appellant.
Ralph G. Barclay [ Sidney Gondelman with him on the brief], for the respondent.
Present — KELLY, P.J., MANNING, YOUNG, KAPPER and HAGARTY, JJ.
While we agree with the appellant that the learned trial justice erred in allowing the X-ray specialist to testify from his notes concerning an X-ray plate examined by him while the boy was at the hospital, we think we should affirm the judgment. Of course, the physician should not have been allowed to testify to the result of his examination of the plate. He made no claim that he took the picture, or that he had ever seen the boy. The plate was not produced, its absence was not satisfactorily accounted for. The persons who took the picture were not called. The witness said the plate he examined had on it the name of the plaintiff and a number; he examined it and made notes of his examination, and, over defendant's objection and exception, he was allowed to tell what the photograph showed, and defendant's motion to strike out the evidence was denied. This was all wrong. But all the doctor's evidence amounted to was that this unidentified X-ray plate showed a broken arm. There was no dispute on the evidence that the boy's arm was broken. The fact was established by other competent testimony from doctors who examined the boy. The defendant's physician, who examined the boy, found evidence of a break. The trial justice charged the jury without objection or exception that the boy's arm had been broken. It is conceded by appellant that there was an issue of fact for the jury as to defendant's negligence and absence of contributory negligence; there is no claim, nor could it well be made, that the verdict is against the evidence or that the damages awarded are excessive. We can see no good reason for reversing the judgment because of the error of the trial justice in admitting the incompetent evidence of the X-ray expert.
The judgment and order denying motion to set aside the verdict should be affirmed, without costs, pursuant to Civil Practice Act, section 106.
Judgment and order denying motion to set aside verdict unanimously affirmed, without costs, pursuant to Civil Practice Act, section 106.