134 Minn. 458 | Minn. | 1916
Action to recover damages alleged to have been caused by the negligence of the defendant in taking an X-ray. There was a verdict for the plaintiff. The defendant appeals from the order denying his alternative motion for judgment or for a new trial.
The evidence is that with a proper machine and with a proper use of it a bum is unusual. There is evidence that the machine was a proper one. The machine and its operation were wholly under the control of the defendant. Under such circumstances the rule of res ipsa loquitur applies. Jones v. Tri-State Tel. & Tel. Co. 118 Minn. 217, 136 N. W. 741, 40 L.R.A. (N.S.) 485.
It does not follow from this, as plaintiff’s counsel argues, that the burden shifted to the defendant of proving freedom from negligence. “Bes ipsa loquitur, where it applies, does not convert the defendant’s general issue into an affirmative defense.” Sweeney v. Erving, 228 U. S. 233, 33 Sup. Ct. 416, 57 L. ed. 815, Ann. Cas. 1914D, 905. The language quoted was approved in Keithley v. Hettinger, 133 Minn. 36, 157 N. W. 897, where the effect of a proper application of the doctrine upon the question of fact in issue was considered. We there held ihat the res ipsa loquitur rule merely permits the jury to draw an inference of negligence; and “the jury is to consider and weigh the inference, in the light of all the facts and circumstances, and give it such weight as tending to prove negligence as they deem it entitled to.” It does not follow from what is here said that the res .ipsa doctrine applies to a bad result or mishap coming from a physician’s treatment. The rule does not apply in such cases.
Order affirmed.