140 Iowa 141 | Iowa | 1908
— 1. This case was submitted to a jury about nine o’clock on the morning of January 18, 1906, and the jury then retired for deliberation. At two o’clock in the afternoon of the same day the jury returned into court, with the report that they were unable to agree upon a verdict, and had agreed to disagree, and thereupon, at the direction of the court, they were reconducted to their room, with instructions to proceed with their deliberations. Fifteen minutes afterward, however, the jurors were called into court, and, replying, in response to a question of the court, that there seemed to be no prospect of their agreeing upon a verdict, the court gave the jury an additional instruction, to the effect that it was the duty of each to lay aside all pride of judgment, and carefully review the ground of his opinion, and endeavor to reach an agreement, and, further, that the case had been exhaustively tried, and a disagreement would necessitate a new trial, entailing a large expense upon the parties; and.the jurors were directed to return to their room and examine their differences in a spirit of fairness and candor, and endeavor, if possible, to agree upon a verdict. Thereupon the jurors again retired, and at nine o’clock in the evening of that day brought in a verdict for the plaintiff.
swervingly against a finding for the plaintiff . , .. . p in any sum whatever, ana were m favor of ' a verdict for defendant, and that after the giving of the additional instruction, and as a consequence thereof, these three jurors agreed to a verdict in plaintiff’s favor. So far as this showing made by affidavits of jurors is concerned, we think it wholly immaterial. The fact that the jurors had not been able to agree was made known to the court in the regular manner, and a subsequent agreement, on a verdict reached nearly seven hours after the additional instruction was given, does not indicate that any other result than that of a further deliberation by the jurors was produced by the giving of the instruction. The court was justified in insisting that the jurors should give further deliberation to the case for the purpose of reaching an agreement, if possible, and the instruction was in accordance with the proper practice in such cases, and not erroneous in the language used. State v. Richardson, 137 Iowa, 591; Delmonica Hotel Co. v. Smith, 112 Iowa, 659; Frandsen v. Chicago, R. I. & P. R. Co., 36 Iowa, 372.
The case of Sargent v. Roberts, 1 Pick. (Mass.) 337 (11 Am. Dec. 185), relied on in our early cases on the subject, has been practically overruled in Kullberg v. O'Donnell, 158 Mass. 405 (33 N. E. 528, 35 Am. St. Rep. 507). Many authorities on the subject are collected in 1 Blashfield on Instructions, sections 182, 183. But for this State the subject is now regulated by a provision of the Code, as follows:
Sec. 3720. Additional instructions. After the jury has retired for deliberation, if they desire to be instructed as to any point of law arising in the case, they may request the officer to conduct them into court, which he shall do, when the court may further instruct, which instruction shall be given in the presence of or after notice to the parties or their counsel. Such instruction shall be in writing, be filed as other instructions in the case, and be a part of the record, and may be excepted to in the same manner and time as the instructions given before the jury retires.
While this section specifically refers only to cases where the jury has.requested additional instructions, it should no doubt be applied also to eases where the court calls in the jury, on his own motion, to give them further instructions,
If, as counsel for appellant insist, the verdict found on this evidence is not to be allowed to stand, it must be that it is insufficient, either on account of the inherent improbability of the evidence, or on account of evidence introduced for the defendant so conclusively contradicting it that it should not have been believed by the jury. As to inherent improbability, all that need be said is that neither the jurors nor the trial judge should be presumed to have such technical knowledge of anatomy and surgery as to be qualified to pass on the improbability of evidence depending on such scientific knowledge. Although such a dislocation as Dr. Ileetland described could have been readily discovered, that fact would simply tend to show* the negligence of defendant in not discovering it, and as against evidence tending to show negligence, we would not be justified in entertaining so strong a presumption that the defendant was not negligent as to overcome the evidence of negligence which the plaintiff introduced. Negligence was the very thing which plaintiff was seeking to establish, and, however reluctant the court or the jury might have been to believe that a reputable physician
The defendant himself, a practicing physician and surgeon of thirty-three years experience, a graduate of a reputable medical 'college, testified that, when called to
Dive physicians, as experts, testified with reference to the proper diagnosis and treatment of subglenoid dislocations; but only two of these had ever in fact seen a subglenoid dislocation (the common dislocation being a subroracoid, in which the head of the humerus is forward of, instead of below, the socket), and each of these two
As to the impossibility of reducing such a dislocation by the method which Dr. Heetland resorted to, we must exclude from consideration what is said by the witnesses as to the danger attending such a method. We are not now concerned with the question whether Dr. Heetland was negligent in resorting to the methods employed. It might be that had blood vessels been ruptured and nerves destroyed, or had the scapula been pulled loose from its mooring, Dr. Heetland would have been liable in damages for malpractice. The question for us is whether in fact a dislocation was reduced. In answer to the claim that, by testimony of witnesses, such a reduction would be impossible without incision after ten weeks’ standing, it is enough to notice that two of defendant’s witnesses described cases in which shoulder dislocations of at least several weeks’ standing have been reduced by manipulation without any incision. The impossibility which they insisted upon was in so loosening the adhesions that the simple operation resorted to by Dr. Heetland would bring the head of the humerus back into its natural socket. They agree that in some cases of shoulder dislocation existing for a considerable period this might be done by manipulation, and we cannot find that under the evidence it would have been impossible for Dr. Heetland to succeed in reducing such dislocation in the method1 employed. The question comes down to this, How strong would be the •adhesions formed after a dislocation had existed for ten
We find that there was some evidence, although by
We have discussed the evidence at greater length than would usually be proper, and have indicated the grounds of our conclusion that there was enough evidence to sustain the verdict of the jury.
The judgment is therefore affirmed.