34 N.Y.S. 652 | N.Y. Sup. Ct. | 1895
A careful examination has been made of the several exceptions taken upon the trial without discovering any prejudicial error presented by them. At the close of the evidence no motion for a nonsuit was made. The case was submitted to the jury on the general principles of law applicable to actions of malpractice, in an elaborate charge, to which no exception was taken. In Shear. & R. Neg. § 435, it is said: “If the practitioner, however, frankly informs a patient of his want of skill, or the patient is in some other way fully aware of it, the latter cannot complain of the lack of that which he knew did not exist.” The substance of the doctrine stated in the quotation just made was apparently approved in Small v. Howard, 128 Mass. 131. See Link v. Sheldon, 64 Hun, 632, 18 N. Y. Supp. 815, affirmed 136 N. Y. 1, 32 N. E. 696. During the charge, the trial judge recognized the rule stated in the citations just made, and carefully instructed the jury in respect thereto, and afforded the jury an opportunity to relieve the appellant from liability by the application of the rule, if, in the judgment of the jury, the facts and circumstances disclosed by the evidence warranted its application. It must be assumed that the verdict of the jury in regard to the branch of the case referred to in the rule of law just mentioned was found adversely to the appellant. After weighing the evidence found in the appeal book, although very conflicting, we are constrained to adopt the rule in respect to the verdict that was stated in Graves v. Santway, (Sup.) 6 N. Y. Supp. 892, affirmed 127 N. Y. 677, 28 N. E. 256. It was there said, in effect, that it is the duty of this court to accept a verdict rendered upon conflicting evidence “unless it is against the clear weight of the evidence” Having found no legal errors committed during the progress of the trial, we are constrained to sustain the verdict of the jury.
Judgment and order affirmed, with costs. All concur.