2. Physicians and surgeons, § 15*—effect of gauge left in wound as causing pain and sickness. In an action for malpractice, evidence held to tend to prove that plaintiff’s sickness, pain and suffering sustained after an operation were caused by gauze being allowed to remain in her body for an unwarranted period of time.3. Physicians and surgeons, § 23*—proper refusal of instructions ignoring special contract of employment. Where there was evidence tending to show that a surgeon, by special contract, agreed to give to the plaintiff his personal care and attention after the performance of an operation and in connection therewith, instructions which directed a verdict and which ignored the alleged special contract were properly refused.4. Physicians and surgeons, § 23*—when instruction as 'to mistake of judgment inapplicable. Where plaintiff’s claim for malpractice was not in any way predicated upon an alleged mistake of judgment on the part of the defendant, an instruction that if the defendant used ordinary skill and care in the treatment of plaintiff, but made a mistake in judgment, that the defendant was not liable for the result of such mistake under the law, held properly refused as misleading.5. Physicians and surgeons, § 23*—where instructions requested are covered by instructions given. In an action for malpractice, it is not erroneous to refuse to give an instruction, the subject-matter of which is fully covered by other instructions given at the instance of the same party.6. Physicians and surgeons, § 21*—where expert testimony not based on personal knowledge. In an action for damages for malpractice, a physician testifying as an expert as to the consequences that would follow from an assumed state of facts need not have personal knowledge as to the position of gauze in the plaintiff’s body after an operation or its condition when removed.7. Appeal and error, § 472*—necessity of exceptions to remarks of court for review. Where no exception is taken by counsel for defendant to a statement or to the ruling of the court, defendant is not in position to complain of same on appeal.8. Physicians and surgeons, § 21*—waiver of right to object to evidence for variance. Where it was contended that the declaration did not charge the defendant with being negligent through any other person than himself, and that it specifically averred that the negligent acts or omissions were the personal acts and omissions of the defendant, and that it was error to instruct the jury that the defendant was liable for negligence on the part of others or to refuse to instruct the jury that the defendant was not liable for the acts of negligence of servants, or agents or house physicians of a hospital, held defendant waived whatever right he had to insist upon the alleged variance, since he did not object to any evidence bearing on the question of his alleged negligence through others on the ground of variance, and did not at any time in any way, point out any alleged variance to the trial court. ■9. Physicians and surgeons, § 21*-—necessity for objecting to evidence on the ground of variance. In an action for malpractice, where defendant fails to object to the introduction of evidence or to point out an alleged variance between the declaration and the proof, so that the declaration may be amended at the trial if desired, the objection of variance cannot be raised for the first time bn appeal.10. Instructions, § 121*—when may be based on improper evidence admitted without objection. Where the plaintiff introduced evidence tending to prove defendant’s negligence, through the acts of others, and the defendant accepted such evidence as competent and introduced evidence for the purpose of rebutting the same, it was proper, under such circumstances, to base instructions on this evidence introduced by the plaintiff, even though such evidence might have been excluded had the defendant objected to the same when offered.11. Physicians and surgeons, § 18*—amount of damages recoverable. In an action for malpractice in performing a surgical operation, a verdict for $10,000 is held not to be excessive as against the weight of the evidence.
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