The chief exception appearing in the record is based upon the following question to the plaintiff’s witness,. Tolbert: “(Q.) You may state after you were operated on and before leaving the hos*800pital, wbat instructions or warnings were given you as to how you should act, or wbat you should do in order to prevent a recurrence of the trouble.” The witness replied that be bad been operated on for hernia by Dr. Gibbon, and that be bad been instructed by bis surgeon not to get uj) on bis tiptoes or reach up high or lift anything or stoop low, or do anything of that nature, as it would probably cause a recurrence of the hernia. Plaintiff objected to this testimony, and it was admitted by the. court. The testimony, upon its face, is incompetent, and should have been excluded. However, the plaintiff testified that be was basing bis entire case upon the statement made to him by Dr. Brenizer, the defendant, that in closing up the wound bis intestine bad been sewed up in the incision. The exact words of the plaintiff are as follows: “That is what I am basing my case on, the statement Dr. Brenizer made to me. He made that to me after the second operation and before I left the hospital. He said be was sorry I bad the misfortune I bad; that be let Worthington do the operation; that be was busy at the time; that is wbat I am basing my case on.”
It is apparent, therefore, that the plaintiff made no contention that the defendant was negligent in failing to give him proper instructions as to bow be should care for himself in order to prevent a recurrence of the hernia. Hence, the testimony objected to bad no bearing upon the cause of action, as alleged by the plaintiff. Moreover, the admission of the testimony was in plaintiff’s favor, and against the defendant, for the reason that under the circumstances of the ease it might have been contended that the defendant was negligent by reason of bis failure to give plaintiff proper instructions. So that, upon the setting of the ease, and upon the entire record, we are of the opinion that the error complained of did not prejudice plaintiff’s cause, and is not of sufficient weight to warrant a new trial.
Affirmed.