Opinion
January, 1915.
In this case expert medical evidence was in a large measure relied upon the establish the fact that the death of the plaintiff's intestate was due to the injury sustained. The plaintiff's physicians said that death was the result of spinal concussion resulting from the accident, while the defendant's doctors testified that death was due to the independent agency of erysipelas accompanied by pneumonia. On cross-examination of Dr. Starr, a witness for the plaintiff, it clearly appeared that his conclusion was not wholly based upon the hypothesis contained in the question propounded, but that it was based upon the evidence given in his presence, upon the trial. An exception taken to the refusal of the court to strike out the answer of the witness presents a reversible error. (See Marx v. Ontario Beach H. A. Co., 211 N.Y. 33.) All concurred. Judgment and order reversed and new trial granted, with costs to appellant to abide event.