235 S.W. 834 | Mo. Ct. App. | 1921
Plaintiff sued to recover damages for alleged negligence on the part of defendant, a physician, in treating plaintiff's eye, injured by a sliver from an axe. Plaintiff recovered in the trial court, and defendant's motion for a new trial being overruled he appealed.
It is alleged that plaintiff engaged defendant to examine and treat his eye, which had been injured by being accidentally struck on the ball by a piece of steel, *277 and that defendant negligently, carelessly and unskillfully conducted himself in and about the examination and treatment of said eye by attempting to locate and remove said piece of steel by means of a certain probe; that through negligence, carelessness and unskillfulness defendant punctured plaintiff's eyeball causing the vitreous humor to escape and causing inflammation to set up, resulting in the total loss and blindness of said eye. The answer is a general denial.
Defendant urges two propositions: First, that his instruction in the nature of a demurrer should have been given, and second, that error was committed in giving plaintiff's instruction 6.
Plaintiff and another were cutting wood, the cut pinched, and they put a double bitted axe in the gash, and plaintiff's helper struck this axe with the dull bit of another axe, and a sliver flew off and struck plaintiff in the lower part of the left eye next to the nose, "across the eyeball rather and cut a little gash." Plaintiff says that it hurt a little then, that he stopped work, went home and had his wife look in his eye. Plaintiff decided to go to Gainsville where defendant resided, but learned at a nearby store that defendant was in that neighborhood, and waited there. Soon defendant came by and examined plaintiff's eye, but could find nothing. Defendant told plaintiff to go to town that afternoon, that there might be something in the eye. Plaintiff went as directed, and defendant again examined the eye, but again failed to find anything. Defendant gave plaintiff some medicine to put in the eye and told him to go home and have his wife wash the eye with salt water. Plaintiff says that he went home and worked around the place some, and that his eye did not hurt him any more until about four o'clock next morning, that then it was paining him pretty severely. Plaintiff went again on that day to defendant. Plaintiff says that he could see out of the injured eye, but when he looked down it appeared smokey. Of this second visit and the treatment given, plaintiff testified: "I went to the *278 doctor, told him I wanted him to look at my eye again, that I thought there might be something in it. He looked into my eye and then he probed into my eye, put something in there at that time. He had some little instrument, some kind of tweezers, sharp pointed instruments, something like that (pointing to a pair of tweezers laying on table). He took them and run across my eyeball that way two or three times and about the last time he went across there it cut through. I felt that instrument go through and it felt mighty bad. It make me sick and I began throwing up and I shoved him back. At that minute when I felt that go through was the last time I seen out of my eye and he said, you will have to go to West Plains and have the doctor look at your eye. My brothers fixed a way and took me over to West Plains. My eye was hurting me mightly bad. When we got to the river my eye was badly swollen. When he was probing the eye the water ran out of the eye and ran down my cheek, dripped off, and the doctor says, there is the eye water."
Lee Crawford, a witness for plaintiff, testified that about the second day after defendant treated plaintiff's eye he heard defendant say that he "probed in behind his eyeball and the eye water began running out and that he saw it was time to quit and he sent him to a hospital. Said he gave him some medicine to ease him; he said he wouldn't be surprised if he lost his eye." Bert Miller testified that about a week after defendant treated plaintiff's eye he heard defendant say: "When I probed into Mr. Anderson's eye, the eye water ran out so bad I had to quit and I advised him to go to West Plains." Henry Hays testified that on the third day after the treatment he had a conversation about plaintiff's eye with defendant in which conversation defendant said that he "probed into his eye and the eye water ran out on his cheek and ran on the floor, and he had a pencil in his hand and he indicated, said he probed into his eye about like that." *279
Plaintiff offered some expert evidence tending to show that it was negligent and improper to probe in his eye in the manner indicated by his evidence. Also plaintiff offered in evidence a part of the evidence of defendant at a former trial where defendant was asked and answered as follows: "Q. Doctor, you say it wouldn't do at all to put a probe in that eye? Down in the eye where the injury was; it wasn't the thing to do at all to use a probe in that eye? A. No, sir."
Defendant denied probing in plaintiff's eye. He says that he "used forceps or tweezers, just opening the lips of the wound and made an examination as carefully as I could, and found that I was not in a position to do so, as I sent him to a specialist." He also offered evidence tending to show that plaintiff's eye was badly swollen when he examined it, and that the sight was already then gone. Defendant said that he had no probe, and made no statements about probing the eye.
For the purposes of the demurrer the evidence is to be viewed in the light most favorable to plaintiff. When the evidence is considered in the light of this well known rule it appears that defendant's contention in this respect is not well founded. It is only when there is no substantial evidence to support the verdict that an appellate court can interfere. Plaintiff's cause is not so abundantly established as his learned counsel contend, yet when measured by a demurrer he was entitled to go to the jury.
The next assignment is of more serious consequence. Plaintiff's instruction 6 is as follows: "The court instructs the jury that the evidence of Doctor Klinger, Irvin Graves, Roma Sims, Tom Foster, and certain other witnesses used by the plaintiff and defendant appears by deposition and by transcript of the stenographer who took the evidence in the former trial in this case, and it therefore becomes your duty to give such testimony such weight and credit as you would if said parties were personally present and testifying before you." *280
To support this instruction plaintiff relies upon State v. Underwood,
In Dry Goods Co. v. McLaughlin, Dyer Co.,
In Freeman v. Ry. Co.,
In Elsner v. Supreme Lodge,
It will be noted that the courts in passing upon instructions dealing with absent witnesses where continuance has been avoided under what is now section 1390, Revised Statutes 1919, have uniformly condemned instructions which have exceeded the latitude allowed by the statute. In Jones v. Railroad, 228 S.W. (Mo.) 780, l.c. 785, there was an application by defendant for a *283 continuance. The continuance was avoided by plaintiff admitting, etc., under section 1390, Revised Statutes 1919. The defendant requested and was refused this instruction: "The court instructs the jury that the evidence of the absent witness, Clare Roach, as contained in and read to you from the affidavit in support of defendant's application for a continuance, is entitled to and should be given the same weight and credit that you would give it if said witness were personally present and testified to the same facts before you."
The court held that this was a proper instruction and should have been given. Commenting thereon it is said: "We confess our inability to understand upon what theory of law the trial court refused to give said instruction C. It is clearly within the purview of above section of the statute, and in Elsner v. Sup. L.K. L. of Honor,
It would appear that if plaintiff's instruction related to the evidence of witnesses whose statements were read under section 1390, Revised Statutes 1919, that it would be a proper instruction; but where the absent witnesses have given their evidence by deposition or before the court at a former trial, and their evidence is not made compulsory in that manner in order to avoid a continuance, we are of the opinion that such an instruction *284 was given in the instant case was improper and prejudicial. We think that the italicised portion of the excerpt quoted, supra, from Jones v. Railroad, is significant, and indicative of what the consequences should be when such an instruction is given except under the statute where a compulsory admission has been made in order to avoid a continuance. All such instructions are a comment on the evidence, but to a limited extent such instructions have been held proper when growing out of applications for and avoidances of continuances under section 1390.
The court refused instruction A, asked by defendant, but he did not raise the point of this refusal in his motion for a new trial. But if on a retrial the evidence is the same as here, and this instruction is again requested, it should be given. The judgment, because of the erroneous instruction noted above, should be reversed and the cause remanded, and it is so ordered.Cox, P.J., and Farrington, J., concur.