33 Cal. App. 2d 363 | Cal. Ct. App. | 1939
This is an action to recover damages for personal injuries. In her complaint the plaintiff named a number of persons, including one corporation. Summons was served on three of the natural persons. By stipulation of counsel the trial court instructed the jury to return a verdict in favor of the defendant Dr. Dorothy J. Starks. As to the defendants Dr. B. A. Powers and Virginia Huntington, his nurse, the cause was submitted to the jury and it returned a verdict in their favor. Prom the judgment entered on that verdict the plaintiff has appealed.
In the latter part of 1936, while residing at Palo Alto, the plaintiff became ill. She consulted Dr. Sox. He examined her and directed her to report to the office of Dr. Powers for an X-ray examination. Dr. Powers and Dr. Starks jointly occupied the same office. Miss Huntington was a nurse in attendance at the office. On the 19th day of January, 1937, the plaintiff went to the office of Dr. Powers, was ushered into a dressing room, directed to disrobe, and then to take a position on a fluoroscopic table. Dr. Powers was not present but Dr. Starks informed the plaintiff that she would act in his place. The fluoroscopic table was in a perpendicular position. At the bottom it had a foot rest. The plaintiff was directed to step upon the foot rest with her back against the table. She did so. Thereafter Miss Huntington commenced to operate the table to bring it to a horizontal position with the plaintiff upon it. While being so operated the mechanism of the table broke. As it did so Miss Huntington attempted to reverse the movement of the table. It did not respond to the switch but continued to move backward and the plaintiff was thrown backward off the table in such a manner that her neck and shoulders struck the wall and floor. In falling she suffered the injuries for which she sought to recover in this action.
Soon after the accident, A. E. Bush, a representative of the manufacturer, went to San Jose to investigate the cause of the accident. On the trial he was called as a witness by the defendants. He was shown photographs which he identified as being photographs of Dr. Powers’ flouroscopie table in different positions. From that testimony it appears that the table, in ordinary language, could be termed a tilting table operated by gears which in turn are moved by electric power. At a point about midway in the length of the
The first point made by the plaintiff is that the evidence is insufficient to justify the verdict. She recites practically all of the evidence, then she claims that the doctrine of res ipsa loquitur indisputably applied. That, as the doctrine of res ipsa loquitur was applicable, plaintiff claims she was entitled to a verdict unless defendants produced evidence to rebut the prima facie case made by her and that the defendants did not do so. In reply the defendants earnestly contend they did introduce evidence rebutting the prima facie case made by the plaintiff. These conflicting contentions are addressed to different elements of the proof. (1) The plaintiff contends the defendants made no examination of the table after the same was purchased. That contention is wholly at variance with the evidence of several witnesses introduced at the trial. However, as we understand her, the plaintiff’s real contention is that the defendants had not, from time to time, caused the gear box to be taken off, the gears to be removed, the pin to be taken out of its socket and placed under an X-ray to determine if crystallization had occurred. The defendants reply that in the exercise of due care a physician and surgeon is not bound to go to such lengths in making a proper examination. That reply is well founded. The plaintiff was an invitee and as such the defendants were bound to exercise reasonable care to protect her from being injured. (Mautino v. Sutter Hospital Assn., 211 Cal. 556, 561 [296 Pac. 76]; Micek v. Weaver-
The judgment appealed from is affirmed.
Nourse, P. J., and Spence, J., concurred.
A petition for a rehearing of this cause was denied by the District Court of Appeal on July 15, 1939, and an application by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on August 14, 1939.