82 Wash. 403 | Wash. | 1914
The respondent wife suffered a miscarriage, which she attributed to electrical treatment administered to her by appellant. The complaint alleged an erroneous diagnosis and a negligent application of electricity as the cause of the injury. The defense was a denial of any act on the part of appellant that would contribute to the injury sustained, with an allegation that the miscarriage was the direct result of an abortive medicine, known as extract of cotton root, which was taken with the design of producing a miscarriage. The cause was twice tried below. Upon the first trial, the jury disagreed; upon the second, the verdict was in favor of respondents.
Error is urged in the denial of appellant’s motion for judgment, and in the exclusion of certain statements made by Mrs. Coombs, to the effect that she would not have any more babies and that she had taken everything she could to avoid.such happening. The second error goes only to the award of a new trial; while the first, if sustained, calls for a dismissal of the case. The jury having found against appellant, the verdict is conclusive upon all disputed issues. It seems to us, however, that the undisputed facts, and the law applicable to such facts, sustain appellant’s first contention.
At the time of the first visit to the appellant, Mrs. Coombs was advanced in pregnancy about two months. It is admitted that, upon this visit, the appellant advised that she
While there may have been some dispute as to whether or not the treatment administered by appellant was sufficient to produce a miscarriage, there is none that cotton root, taken as Mrs. Coombs admits she took it, would produce such a result. It is admitted, by all who speak from a knowledge of the subject, that cotton root is an abortive medicine, and when taken internally by a woman advanced two months in pregnancy, will produce an abortion in. from two to fourteen days or longer, depending somewhat upon the physical condition of the woman taking it and her susceptibility to the effect it produces. Admitting, therefore, as contended by respondents, that the treatment given by appellant, while neither administered nor received with abortive intent, would produce the miscarriage, we also have the undisputed fact that cotton root, taken internally by a woman in Mrs. Coombs’ condition, will produce a like result.
As between these two causes, for one of which only appellant would be responsible, which was the proximate cause of the injury suffered by Mrs. Coombs? To answer is to guess, since it is impossible for the evidence to give any indication. The evidence as to the first cause is conjectural, and the most that can be said is that it is equally consistent with proper and improper treatment. The evidence as to the second cause is certain and consistent only with one theory, and that is that it would produce an abortion and was taken with that intent. In the face of these facts, we do not feel
“When the burden of proof is on the plaintiff to show that the injury was negligently caused by defendant, it is not enough to show the injury, together with the expert opinion that it might have occurred from negligence and many other causes. Such evidence has no tendency to show that negligence did cause the injury. When plaintiff produces evidence that is consistent with an hypothesis that the defendant is not negligent, and also with one that he is, his proof tends to establish neither.”
Judgment should have been entered in appellant’s favor. The judgment is reversed and the cause remanded with instructions to dismiss.
Chow, C. J., Parker, Gose, and Chadwick, JJ., concur.