83 Vt. 115 | Vt. | 1909
This purports to be an action on the ease against the defendants as surgeons for not properly setting and caring for the plaintiff’s broken leg. The declaration contains but one count, which alleges with time and place that the plaintiff employed the defendants to reduce said fracture and set the bone, and take care of the leg till the fracture should become sound and well, and then and there promised to pay the defendants a reasonable compensation for their services and skill in that behalf; that the defendants then and there in consideration thereof, “undertook to reduce said fracture and set the broken bone of the plaintiff’s said leg in a proper and skillful manner, and undertook the care and charge of said leg and the cure thereof;” yet that the defendants, not regarding their duty in that behalf, did not reduce said fracture and set said broken bone in a skillful and proper manner, and did not take proper care nor use proper skill in the cure thereof, but on the contrary conducted themselves so carelessly and unskillfnlly in that behalf that the broken bone was not set and kept in its proper place, but remained out of place so that the ends thereof lapped by each other for the space of two inches, and was permitted so to remain for a long space of time, etc., so that the bone could not be properly set, and that by reason of the negligence and want of care and skill on the part of the defendants, said leg became sore and painful and shorter than it should be, whereby the plaintiff has suffered great pain and sustained great and permanent injury.
The ease was tried by jury and the plaintiff had a verdict. Question is made as to the form of the action. The defendants say it is assumpsit, the plaintiff says it is case. The court called it case, and tried it accordingly, to which the defendants excepted. The defendants also excepted to the overruling of their motion in arrest, for that the verdict was defective, being
Now although the word “undertook,” as used in the first part of the allegation in question, being followed, as it is, by an infinitive phrase, is capable of being construed to import a binding contract on the part of the defendants to do the things mentioned in that part, namely, to reduce the fracture and set the bone in a proper and skillful manner; yet it is also capable of being construed to mean, especially when taken with-the rest of the allegation, no more than that they accepted the retainer, and undertook, in the sense of taking in hand, and entering upon, the performance of the duties thereof. This view is strengthened by the way the word “undertook” is used in the last part of the allegation, where it is not followed by an infinitive phrase, but the language is, “and undertook the care and charge of said leg and the cure thereof,” which is hardly capable of being construed into a binding obligation. This sustains the verdict, as it makes the action case.
It appeared that at the’ plaintiff’s house, some time after the injury, Dr. Warren, assisted by Dr. Burbank, broke over and set the plaintiff’s leg, Dr. Crane administering the anesthetic, but taking no other part in the operation.
The plaintiff, in his opening, called Dr. Crane as a witness, and asked him if he did not consider Dr. Warren’s operation proper, and he said he did not as it was performed and in the place it was performed. He was then asked whether he made any objection to it or protest against it at the time, and he said he did not. To this the defendants excepted. It
There was no evidence tending to show that Dr. Crane was ever employed to have general charge of the case, but all the evidence tended to show that his employment was confined to the several occasions when he was called to assist as shown by the bill of exceptions.
It was error, in the circumstances, to admit the testimony objected to. Dr. Crane had already advised against any operation at the time and in the place it was performed, but his advice had been disregarded, and the operation was being performed contrary thereto, and was not subject to his control. Therefore he was not called upon to object to nor to protest against it, and hence no inference of approval of it could be drawn against him from his silence in that respect.
Dr. Warren was used as a witness by the plaintiff in his opening, both as to facts and as a medical expert. Against the objection and subject to the exception of the defendants, the plaintiff was allowed to ask him whether he would consider it proper to leave the plaintiff so that he did not touch any part of the leg only above the hip, to which he answered, “Not in a case of this kind.” The bill of exceptions states that “there was no evidence in the case tending to show that the plaintiff was so placed by the defendants that no part of his leg touched anything.” The plaintiff’s counsel refers to a certain page of the transcript of the evidence, and claims that it shows that there was such evidence. But though the bill says in one place
It appeared in the course of the testimony that the plaintiff had a slight curvature of the spine. In his opening argument to the jury, the plaintiff’s counsel began to discuss that matter. The defendants’ counsel objected that if there was a curvature, there was nothing to show that the defendants were responsible for it. Thereupon the court said that it did not appear that it was due to anything the defendants did. But plaintiff’s counsel insisted that it being in the ease he had a right to discuss it, and he was permitted to and did, subject to defendants’ exception. He told the jury that it was for them to say what caused the curvature, and called their attention with considerable particularity to the way and manner the defendants treated the case in respect of extending the leg, putting on plasters and bandages and the like; from all which he asked the jury, in effect, to find that the treatment caused the curvature. To permit this argument was error, for to warrant that finding, medical expert testimony tending to show the truth of the claimed fact was necessary, and there was none. Wilkins v. Brock, 81 Vt. 332, 343, 70 Atl. 572; Sheldon v. Wright, 80 Vt. 298, 317, 67 Atl. 807.
The defendants bring a petition for a new trial on the ground of newly discovered evidence. But the evidence is largely cumulative or impeaching, and is not sufficiently decisive in character to make it reasonably probable that it would be the means of working a different result on another trial.
Judgment reversed, petition dismissed with costs, and cause remanded.