168 Wis. 104 | Wis. | 1918
The errors assigned by the defendants raise the question whether or not there was sufficient evidence to sustain the verdict of the jury. In the first place. it is to be noted that the plaintiff’s claim to compensation is based upon the condition of her left ankle and for pain and suffering in so far as the same are due solely to the negligence found by the jury. The court did not submit to the jury the question of whether or not the failure of the bone to unite was due to the negligence of the defendants, but the damages are limited by the special verdict and the instructions of the court thereon to such damages as the plaintiff sustained by reason of the stiffened condition of her ankle and for pain and suffering as stated. The evi
It is established by the overwhelming weight of evidence in this case that the claimed negligence had nothing to do with the failure of nature to commence the healing process. If there had been a proper amount of exudate and it appeared that the failure of the fragments to unite was due to the fact that they were held so far apart that the ends could not be united, a different situation would be presented, but there is not a syllable of such testimony in the case. The
The court instructed the jury on the first question as follows:
“Whether the broken ends of the bone were put in proper apposition by the doctors in the first instance; whether those ends were drawn apart or kept apart by the weights after the fracture had been reduced; whether it was negligence on the part of the defendants or of either of them to tell the plaintiff to use the leg on the assumption or belief — on the assumption or belief that the broken ends had become united, when the fact was that they were not united; whether in the disunited condition of the broken ends it was or was not negligence on the part of the defendants, or either of them, not to have called on the plaintiff within a period of about seven days after the weights had been removed and the leg had been released from the splints or box; whether the weights were too heavy; whether the left foot was or was not kept in a proper position while in the fracture box or in the splints; and whether the pull of the weights and the position of the left foot did or did not have anything to do with causing the present stiffened condition of the left ankle; and whether the omission on the defendants’ part to take or cause to be taken an X-ray picture of the fracture before that was done, are each and all matters as to which the evidence relating thereto is to be considered by you in answering this first .question.”
To submit the issues in this case to the jury under such broad instructions as these is simply to permit the jury to speculate as to the probable cause of plaintiff’s injuries. Dr. Crosby, plaintiff’s expert, testified on his direct examination that proper treatment did not require the use of a weight, and described another method of treatment. He did not testify that the method adopted by the defendants was an improper method, and on cross-examination testified that Buck’s extension apparatus was in general use in that vicin
The court further correctly instructed the jury:
“A physician and surgeon is not an insurer or guarantor of a cure. If the treatment in this case was such as physicians or surgeons of ordinary knowledge and skill, of the same school of medicine and practicing in the same vicinity, would have exercised under the same or similar circumstances, then the fact that a bad result followed from the treatment, if you find that that was the fact, is not in itself alone sufficient to charge the defendants or either of them with negligence.”
The difficulty seems to be that the trial court entirely ignored the undisputed fact that the failure of the fragments to unite was due to some cause with which the treat
There is one claim of negligence as to which there is sufficient evidence to sustain the finding of the jury, and that is. that the defendant Voskuil was negligent in not discovering the fact that the injury had not healed at the time of the removal of the extension apparatus and in defendants’ further failure to call upon the patient for seven or eight days thereafter. However, there is no' evidence showing that this in any way contributed to or was a factor in producing the injury complained of. In fact, the attempted use of the leg during that week, so far as the stiffness of the ankle joint is concerned, would have been helpful rather than otherwise.
It is claimed that the defendants were negligent and guilty of careless and unskilful treatment of the plaintiff because they failed to cause an X-ray picture of plaintiff’s broken leg to be made while they were treating it. At the time of her injury plaintiff lived at Cedar Grove. There was no X-ray apparatus at or near that place, and there was no suitable electrical current available. Neither does it appear from the testimony that, had an X-ray picture been taken during the treatment, it would have shown that no callus was being formed at the point of fracture. Notwithstanding, the court submitted to the jury the question whether or not the failure of the defendants to take or cause to be taken an X-ray picture was negligence on the part of the defendants. Plaintiff’s attorneys cite us to' no case holding
By the Court.- — -Judgment reversed, and cause remanded to the circuit court with directions to dismiss plaintiff’s complaint upon the merits.