113 Wis. 280 | Wis. | 1902
The first and most important question, the-answer to which will control decision upon several assignments of error, is whether or not, upon the second trial, there was new evidence with reference to defendant’s treatment of plaintiff’s wrist, so as to. take the case out of the rule that the decision on the former appeal is res adjudicaba at all future stages of the case, and whether, in the light of such new evidence, it might reasonably be concluded by a jury that there was maltreatment, and that the injuries to the wrist resulted therefrom. Upon the former trial it was testified by defendant and Dr. Rigrish that the fragments, of the broken radius were brought into apposition, and so retained until they healed, save for a very slight displacement whereby the lower fragment had a dorsal protrusion of( about one eighth of an inch above the upper fragment, and an inward projection of about one sixteenth of an inch toward the ulna. This testimony was then undisputed, the only other evidence on the subject being that of Dr. Gunderson* that he found “some displacement,” and that he also found something of the malformation of the wrist characteristic-of the Oolles fracture, known as the “silver-fork” or “bayonet” deformity. It was proved, practically without dis-
The first question in such consideration is whether defendant allowed the bones to reunite without substantially reducing the fracture; that is, with a displacement of nearly or quite their entire thickness. This was considered conclusively negatived on the former appeal by the direct testimony of defendant and Dr. Eigrish, which, while its certainty was questioned, was not disputed by any other testimony nor by any facts or symptoms not easily accounted for by some other probable cause. On the last trial that testimony was antagonized by that of Gunderson, already mentioned. Thereupon the necessary uncertainty of any estimate by Eigrish, and even by defendant, at the time bandages were removed becomes important, as also the evident thoroughness of Dr. Gunderson’s examination, the wide extent of his experience, and his evident fairness as a witness,— nay, his obvious anxiety to state everything as favorably to defendant as truth would permit. He was not testifying merely to an opinion upon a hypothetical situation, but to facts which he observed, and to his deductions from those facts in the light of his professional learning and experience. In this situation we do not feel able to say that reasonable minds might not differ as to the extent of displacement permitted by defendant; hence if was properly one for the jury. If the fact was as plaintiff claims and Dr. Gunderson opines,
The next question in order is whether there is evidence to connect the condition of plaintiff’s wrist with such treatment as its cause. The great and radical trouble was so large a growth of callus about the point of fracture that it united the radius and ulna, destroying almost completely pronation and supination; with this was the bent, or silver-fork, position of wrist and hand,"impairing practical use of the latter. These induced the very serious operation performed by Dr. Gunderson of cutting open the arm, chiseling away the growth between the radius and ulna, freeing the ligaments which had become fastened into the callus, and then cutting a transverse section or disc out of the bent and distorted radius, so as to shorten it to its normal length and to bring the parts of it into allignment, and then re-setting them. It was decided upon the former appeal that the evidence conclusively proved that such growth of callus would not have been within reasonable expectation as the result of the defendant’s- treatment. That, however, was said with reference to the conditions then held to be presented by the record, a principal one being the very slight displacement, then undisputed. It is shown, at least there is evidence tending to show, that callus deposit is ordinarily the result of fracture; that, the greater the separation or dislocation of the fragments, the greater the volume of callus necessary to form the union and to round off the corners and angles;
The jury might well have found the relation of proximate cause and effect between complete displacement of the fragments of the radius and the volume of callus formed in plaintiff’s wrist, with the resulting disablement and necessity for operation, with attendant suffering and expense. There is, too, abundant evidence that the deformity and distortion of plaintiff’s hand were natural and probable results of the greater displacement of the several fragments.
The conclusion thus ireached with reference to the existence of a conflict of evidence as to the propriety of defendant’s treatment of the fracture and the responsibility of such treatment for the condition of the wrist itself, as found and treated by Dr. Gunderson, disposes of the first, second, and third assignments of error, predicated on the denial of defendant’s respective motions for nonsuit, for direction of a verdict, and for a new trial; also of the fourth, upon a refusal to instruct as matter of law that he was not negligent in failing to reset the fracture ‘when he discovered the want of apposition; also of the fifth and sixth, predicated upon refusals to instruct the jury to find for the defendant unless the binding of the finger’s to* the splint for too long a time should be found to have occurred, and to have been negligent. It also disposes of the argument under the seventh
2. The appellant predicates his eighth and ninth assignments of error upon refusal of instructions requested by him: First, that there was no evidence in this case to justify the jury in finding that the splint used by the defendant in his treatment of the plaintiff was improper or unsuitable. While it is undoubtedly true that the preponderance of the evidence was to the effect that the splint used, namely, one extending to the ends of the fingers, was proper enough for the purpose of keeping the fractured bones in place, and quite immaterial to that subject, there was testimony that the use of such a splint, accompanied by the binding of the hand to it, was not good practice. The confinement of the hand during the five or six weeks necessary for the curing of the fracture was so intimately connected with the use of the splint extending to the ends of the fingers that the instruction as requested, with no qualification, would have been misleading to the jury. The court did submit by his instruction, not whether the use of the splint alone was improper, but whether the treatment of the fingers by binding them to this splint was negligent and was the proximate cause of any injury. In this respect we are satisfied no error was committed.
The court refused defendant’s request to instruct:
“Unless the jury finds that all of the injury for which plaintiff seeks to recover in this action resulted wholly from the want of ordinary care and skill on the part of the defendant, . . . and that the negligence or imprudence of plaintiff herself in no degree contributed thereto^ your verdict must be for the defendant.”
This instruction is so worded as to be improper. The jury were not bound to find for the defendant, although they
“It was the duty of the plaintiff to co-operate with the defendant, and to conform to his directions, and if she did not do so, or under the pressure of pain could not do so, she cannot hold the defendant responsible, and if her failure in any degree contributed to the injurious results claimed your verdict must be for the defendant.”
This was entirely too favorable to defendant, but certainly informed the jury that plaintiff could not recover for injuries due to her own neglect. The complaint is, however, that in a later portion of the charge, where the court summarized the previous instructions, the jury were told that if, under all the evidence, they found the defendant guilty of negligence, they should find for the plaintiff and assess the damages sustained by her. In immediate contact therewith, however, and as a qualification thereof, he proceeded with an instruction as to proximate cause, in which he pointed out that only for such damages as were proximately caused by defendant’s negligence could the plaintiff recover, and that the intervention of any other cause, such, for example, as her own neglect, would excuse him. From an examination of the entire charge, we are satisfied that the jury could not have been misled by the sentence extracted by defendant’s counsel and excepted to. It was so connected with other portions of the charge that they could not have failed to understand that he was to be exempted from any
Another portion of the charge is segregated by an exception, and made the basis of the tenth assignment of error, wherein it is claimed that the jury were misled to the idea that defendant owed the duty of care and still ordinarily exercised by physicians and surgeons, without limiting the comparison to professional men of the vicinity where plaintiff and defendant resided. The expression criticised is:
“To apply it in this case^ the negligence must have been such that a physician and surgeon in the exercise of ordinary care and still in the treatment of the plaintiff would have foreseen, or ought reasonably to have anticipated, that the plaintiff would sustain the injuries.”
The court had already fully instructed the jury that the duty of the defendant was merely that care and skill “usually exercised by physicians and surgeons of good standing in the vicinity or locality of his practice.” The sentence criti-cised arises in the course of an instruction upon proximate cause, in which the court, in attempting to give the several elements thereof, used the sentence quoted. In this we think there was no error. It in no wise modified of conflicted with the rule already given, and it was of course desirable, in the effort to instruct the jury upon the somewhat abstruse and metaphysical rule of proximate cause, to eliminate, as far as possible, parenthetical qualifications, further unnecessarily obscuring the idea .to be conveyed. The measure of defendant’s duty of care and skill was correctly given, and we do not think could have been modified to the minds of the jury by the sentence assailed, in the connection in which it was used.
3. The eleventh, twelfth, and thirteenth assignments of error are predicated upon allowing plaintiff to inquire of her own expert as to the propriety of defendant’s treatment, on the assumption that the fragments of bone were displaced
Another consideration must not be lost sight of, namely, that at the time these questions were put to the expert, the testimony of neither the defendant nor Dr. Rigrish had yet been given in evidence. There was nothing then before the jury, either to deny the testimony of Dr. Gunderson that in his opinion the fragments were entirely out of apposition, or to suggest the existence of the newritic complication. It is therefore entirely clear that the hypothesis upon which this expert was xrequested to< give an opinion had support in the evidence, and that no error was committed in permitting its introduction at that time. Defendant had full opportunity to cross-examine upon any modification of that hypothesis which was justified by the evidence.
4. The motion for new trial was predicated, inter alia, upon remarks of plaintiff’s counsel, alleged to have been improper and prejudicial. We do not deem the first, second, or
“This action is one by a lot of doctors against a poor girl, which one of them has injured and maltreated, and the title so should read.”
This was objected to, and the trial court declared the statement out of place, rebuked the attorney, and directed him to argue the evidence, and not make general statements not found therein. We can conceive no apology for counsel in making such a statement as this to a jury. The suggestion that the plaintiff stood in this case in the attitude of defending herself against a suggested conspiracy of doctors to do her some further injury was utterly false, of course to the knowledge of the counsel, and its motive could have been only to mislead the jury and arouse their prejudices improperly. The court below, however, treated the conduct as it should have been treated, and the vigor of his remarks, which of course cannot be illustrated by the printed page, may perhaps be inferred by the fact that nowhere else throughout the argument does counsel seem to have trespassed upon the rules of propriety. But while in no way apologizing either for the remark itself or for the motive with which counsel must have made it, we feel constrained to yield to the conclusion of the court below that it was not prejudicial in its results. The prompt rebuke from the court -may well cause such excursions by counsel outside of their proper province to recoil upon their own head. It may have done more to arouse the jury to a strict sense of their obligation to both parties than could much argument by defendant’s counsel. The record upon this trial of the case is replete with evidence of the care and wisdom exercised by the
We find no other assignments of error worthy of argument ; certainly none which can be sustained.
By the Gourt. — Judgment affirmed.