189 A.D. 185 | N.Y. App. Div. | 1919
We all agree that upon the evidence in the record the learned trial justice erred in submitting to the jury the question whether the defendant was hable for negligence because those in charge of the ship did not send the plaintiff to a hospital at Barbadoes, or at one of the ports in South America at which the vessel called. There is nothing in the case to show that if
The medical expert called by the plaintiff testified that the fracture of the tuberosity might be determined without use of the X-ray. He says that he ascertains this condition in the majority of cases without any X-ray, and that an operation is not necessary to cure or remedy such a condition, as most patients get well without it. He says that his treatment of such a fracture would have been to “ immobilize the arm in external rotation,” which he explains is to turn the arm out and keep it immobilized in that position for three or four weeks. He also testifies that it is absolutely necessary to have the cooperation of the patient. But his testimony, at the most, is that he might have used a different method of treatment
But upon the law of the case, as charged by the learned trial justice without objection or exception by the plaintiff, I think there was no evidence justifying the submission of the case to the jury, and that defendant’s motion at the close of the testimony for nonsuit should have been granted. The complaint alleged that the ship’s doctor was incompetent and that the treatment of the plaintiff was improper. There was no evidence in the case that he was incompetent and the trial judge charged the jury without objection or exception that the ship’s doctor was “ a duly qualified physician, a man of some experience, of middle age, or past, and was thoroughly competent to discharge his duties as a physician on board this vessel. So that no liability can be predicated here for anything which the doctor did in his failure to properly diagnose or treat this case.” The medical witness called by the plaintiff was not asked whether the diagnosis or treatment of plaintiff by the ship’s doctor was proper or improper or whether it was or was not the usual and customary treatment in such cases. If there had been evidence of malpractice coupled with plaintiff’s testimony as to his complaints to the master of the ship, denied by the defendant’s witnesses, an issue might have been presented for the jury. But if the ship’s doctor was competent, and the appliances and facilities in the ship’s hospital were sufficient, the defendant was not liable. “ The question to be determined was a medical one, the advice of a competent
Jenks, P. J., Mills, Rich and Jatcox, JJ., concurred.
Judgment and order reversed, with costs, and complaint unanimously dismissed, with costs.