66 Neb. 486 | Neb. | 1902
It is alleged in the petition, among other things, that the plaintiff sustained a fracture of the bones of his leg below the knee and a dislocation of one of said bones, and that, the defendants, at his instance and request, undertook, as physicians and surgeons, to treat and heal such injuries; that because of the negligence and lack of skill on the part of the defendants, the ends of the broken bones were not properly brought together, and the dislocation was not reduced; that by reason of such omission, the fractured bones failed to unite properly, leaving the plaintiff lame and causing him great bodily pain. The answer admits the fracture of the bones, as alleged in the petition, and that the defendants were employed as physicians and sur
On the trial the plaintiff offered in evidence an X-ray photograph of his injured leg, taken after his injuries had been treated by the defendants. It was objected to, on the ground that a sufficient foundation had not been laid. The objection was sustained, and the ruling of the court in that behalf is now assigned as error. The defendants insist that the ruling of the court was right, because the competency of the person taking the photograph, the condition of the apparatus with which it was taken, and that the circumstances under which it was taken, were such as to insure an accurate picture, had not been sufficiently shown in evidence. To show such matters is simply one way of establishing the accuracy of the picture. We do not understand that such way is exclusive. Refore the photograph was last offered in evidence, the plaintiff had introduced evidence tending to prove all the material allegations of his petition. In addition, Doctor Arnold had testified, in effect, after showing his competency as an expert, that he had examined the injured leg by means of the X-ray, after it had been treated by the defendants, and found the fracture and dislocation alleged in the petition. His testimony tended to show that neither the fracture nor the. dislocation had been properly reduced. He further testified that the photograph offered in evidence was a true representation of the position, location and condition of the bones of the injured leg, as they were at the time he made the examination. The testimony of Doctors Robinson and Hunt is to the same effect, save that the former ascertained the position, location and condition of the bones by manipulation. The means employed by the latter to ascertain such facts do not appear. In view of this testimony we do not deem it necessary to go into the question of the competency of the person who took the photograph, the con
Lastly, it is urged that, whatever error may have been in the exclusion of the photograph, it was error without
The court, on its own motion, among other things, instructed the jury as follows:
“8. You are further instructed that the material allegations of the petition, not so admitted and assumed, as set forth in the last preceding instruction, and upon which you must deliberate and make findings before you can render a verdict in this case are as follows: First. That the defendants carelessly, unskillfully and negligently failed to bring the ends and parts of the broken bones into apposition so that they could properly unite together; that is to place each part opposite to and in close contact with the part from which it was broken. Second. That the defendants carelessly, negligently and unskilfully failed to reduce the dislocation of the fibula of the plaintiff’s leg; that is to place the joint in proper position. Third. That defendants carelessly, negligently and un-skilfully failed to apply to said fractures and dislocations the proper extensions and counter-extensions, splints and bandages to retain said broken bones and dislocated bone in their proper position. Fourth. That the defendants carelessly, negligently and unskillfully bandaged and dressed said injured leg and dislocated joint so that they could not properly heal and unite.”
“4., You are instructed that the burden is upon the*491 plaintiff and. it is for Mm to prove every material allegation set forth in the last preceding instruction by a preponderance of the evidence, if you find that the evidence hearing upon any one of these allegations- is evenly balanced, or that it preponderates in favor of the defendants, then the plaintiff can not recover upon such allegation, and if you find that the evidence bearing on all these allegations is evenly balanced, or that it preponderates in favor of the defendants, then the plaintiff can not recover and you should find for the defendant.”
The plaintiff complains of these instructions, because they required him to establish “every material allegation” of the petition, specified in the third paragraph of the charge by a preponderance of the evidence. We do not think the instruction fairly construed admits of that construction, especially in view of a subsequent instruction, in the following language:
“If you believe from the evidence that the defendants failed to bring the ends and parts of the broken bones into apposition so that the bones could properly unite and that this failure resulted from the want of ordinary skill and care on the part of the defendants; or if you believe from the evidence that defendants failed to reduce the dislocation, if such dislocation exists, of the fibula of plaintiff’s leg and that such failure resulted from want of ordinary skill and care on the part of the defendants, or if you believe from the evidence that defendants failed to apply to plaintiff’s leg such extensions and counter-extensions, splints and bandages as would be considered necessary under like circumstances by physicians and surgeons of good repute in the ordinary practice of their profession, or if you believe from the evidence that defendants did not bandage and dress plaintiff’s leg with ordinary skill and .care. And if you further find that the injuries to plaintiff’s leg were caused by any one or more of these failures or omissions you will find for the plaintiff.”
The defendants insist that the plaintiff has no standing in this court, because “the court was without any author
We recommend that the judgment of the district court be reversed, and the cause remanded for further proceedings according to law.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is reversed, and the cause remanded for further proceedings according to law.
REVERSED AND REMANDED.
Note. — Roentgen Rays. — The discovery of the X-rays is comparatively recent. The utility and trustworthiness of the results of this process, are already so well established as scientific facts as to be matter of judicial knowledge. And, if the fact that the exposure of the person to these rays is harmless becomes as well established in science as is the accuracy of the photographs taken by them, there is as much reason why in a proper case the plaintiff should be required to submit his neck to those rays for the purpose of
See opinion of Mr. Commissioner Ames in City of Geneva v. Burnett, 65 Nebr., 464, and note.-W. F. B.
The court had previously held that, in a proper case, the plaintiff could be compelled to a physical examination under pain of having his case dismissed. Wanek v. City of Winona, 78 Minn., 98. —W. F. B.