244 A.D. 746 | N.Y. App. Div. | 1935
Judgment dismissing the complaint on the merits at the close of the plaintiffs’ ease in an action to recover damages for alleged malpractice of the defendant, a physician, as the result of an operation performed on the infant plaintiff for removal of his tonsils, reversed on the law and a new trial granted, with costs to appellants to abide the event. We are of opinion that the court erred in refusing to permit the jury to examine the infant plaintiff’s throat to determine the results of the operation by comparison with the diagram, in evidence, of a eoncededly normal throat. We may not say that the injuries of which the plaintiff complains would require more than a layman’s knowledge of cause and effect. (Shaw v. Tagne, 257 N. Y. 193; Benson v. Dean, 232 id. 52; Carpenter v. Blake, 75 id. 12; Pelky v. Kivlin, 199 App. Div. 114.) Proof of injuries resulting from the operation, if there be such proof, taken together with the proved admission by the defendant that “ I cut it just a little too far ” and all the other proofs and circumstances in the case, constitutes, in our opinion, a prima facie case, Lazansky, P. J., Young, Hagarty, Carswell and Scudder, JJ., concur.
