162 Mo. App. 46 | Mo. Ct. App. | 1911
This is a suit for damages accrued to plaintiff on account of malpractice by defendant. Plaintiff recovered in the amount of $5,583.33, and from this judgment defendant prosecutes the appeal.
Plaintiff is a machinist by trade, while defendent is a physician and surgeon engaged in practicing his profession in the city of St. Louis. The evidence tends to prove that while working at his trade plaintiff received a slight scratch in the palm of his right hand, which, though it did not impair the usefulness of the hand, nevertheless refused to yield to home treatment. In a short time the injury developed a red spot in the palm" of the hand about the size of a half dollar. Though such result appeared, it is said that it neither occasioned pain nor inconvenienced plaintiff in the performance of his work as a machinist. As the condition seemed obstinate and continued notwithstanding the treatment applied, plaintiff consulted defendant thereabout on August 10, 1901.- Defendant diagnosed the case and informed plaintiff that he was suffering from a chronic disease known as dry tetter or eczema and that he could cure it in a reasonable time; whereupon plaintiff says he employed defendant to treat his hand for the ailment, and that he commenced the treatment by applying a salve to the spot in the hand but which afforded no relief. . Defendant continued treating plaintiff for more than a year by the application of different remedies without
If plaintiff’s evidence is true, as the jury found it to be, the record is replete with testimony tending to prove that defendant was negligent in respect of the manner in which he applied the X-ray on nine different occasions within eleven days. But it is argued there is no evidence of the particular negligence alleged in the petition .and the court should therefore have directed a verdict for defendant. Under this head, too, it is argued the court by instructions
For plaintiff the court gave the following instruction :
“The court instructs the jury that one who holds himself out to the public as a physician and surgeon,
It appears plaintiff instituted a prior suit against defendant on the same cause of action here asserted, and that he suffered an involuntary nonsuit therein under an instruction by the court to the' effect that he was not entitled to recover. In such prior suit on the same cause of action — that is, for the injury to his hand — plaintiff’s petition recited additional specifications of negligence to that now relied upon, all of which were contained in one and the same count. Besides averring an unskillful application of the X-rays to his hand at eight or nine different times and for a considerable length of time each, he averred, too, in such former suit that defendant was otherwise negligent with respect, to the treatment. Such additional specifications of negligence go to the effect that after plaintiff’s hand became swollen and diseased by the burn received from the machine, defendant carelessly and unskillfully bound a cloth saturated with a strong solution of salt water on the palm of his hand, thereby causing his hand to mortify and decay, and that defendant negligently and carelessly scraped the mortified and decayed flesh from the palm of his hand and
Defendant sought to introduce and the court excluded, over his objection and exception, evidence tending to prove that plaintiff assumed all risk incident to the use of the X-ray on his hand. It is argued this was error for which the judgment should be reversed. As we understand it, if this evidence had been
But it is said, though such be true, the law does not require a man to do more than he undertakes nor
But tkougk suck be true, tke court erred in excluding defendant’s evidence touching this matter, for it may be plaintiff’s injury resulted from a risk wkick attended tke application of tke X-ray with due care and this he had agreed to take upon himself. It is true tke instructions purported to submit tke issue of due care and tke want of it to tke jury] but defendant was entitled to tke benefit of plaintiff’s express agreement wkick induced kirn to enter upon tke course of