4 N.Y.S. 310 | N.Y. Sup. Ct. | 1889
The objection of defendant to the use of a skull to explain to the jury the nature of plaintiff’s injuries is not well taken, nor was the objection to the exhibition of the surgical instruments, by which the operation was performed, valid. The examination of the plaintiff in presence of the jury to see if pus continued to exude from the wound was not objectionable. The object of a trial being to acquaint the jury with the truth of the case, it is not perceived-how any of these means, useful for that purpose, could injure the appellant. To suppose that the sight of a skull and the instruments, used, as they were, to explain the injury and the operation necessary to relieve it, should have “inflamed the passions of the jury, ” is quite unreasonable. Their use was a matter in the discretion of the circuit judge, which was wisely exercised. Nor was it error to allow the surgeon to testify to the value of his services. The complaint avers that plaintiff was put to expense for surgical aid, and it is not necessary that the amount should be in fact paid to enable the plaintiff to recover. It is sufficient that he is liable to pay. The motion to dismiss the complaint presents the same questions as upon the former appeal, and does not require a renewed discussion. The jury could have had little difficulty in deciding that the hot coal came from defendant’s engine, and the testimony of defendant’s witnesses showed that such an event would not have occurred had proper skill and diligence been used. The charge of the court was more favorable to defendant in the degree of care required than has been the ease in many instances. A severer rule has frequently been approved upon appeal. No error appears, and the judgment must be affirmed, with costs. All concur.
