90 Neb. 774 | Neb. | 1912
Lead Opinion
This is an action by the plaintiff .against the defendant, a physician and surgeon, for damages alleged to have been sustained by reason of the negligent and unskilful treatment of plaintiff as the patient of defendant in and about the treatment of plaintiff, who had been injured by stepping upon a sewing needle, which had punctured his foot, and the point of the needle was supposed to have remained within the punctured wound in the ball of the foot near or about the joint of the great toe. No serious question arises with reference to the pleadings. The facts alleged, and so far as undisputed, are that late in the evening, or early morning, on or about the 7th day of August, 1908, plaintiff stepped upon an ordinary sewing needle on or in
The errors assigned in this court are: First. “Errors of law occurring on the trial and duly excepted to by the defendant.” The second to the eleventh, inclusive, consist of alleged errors in giving certain instructions to the jury and in refusing to give instructions asked by defendant — the instructions being separately referred to in the assignments; twelfth and thirteenth, that the damages are excessive.
Under the first assignment, the only question discussed in defendant’s brief is as to alleged errors of the court in admitting immaterial and irrelevant testimony. The tes
There is also some objection to the admitted testimony of plaintiff and one of the physicians who was called as a witness by him. Upon a careful consideration of the rulings complained of, we are unable to see any reversible error, and will not notice the subject further.
The next contention is that there was manifest error in the instructions given to the jury. The transcript contains 36 instructions given. That the jury were thoroughly instructed cannot well be doubted in so far as volume is concerned. The practice of overloading juries with a great number of instructions has been freely condemned by this court. As we said in City of Beatrice v. Leary, 45 Neb. 149; “Instructions in a case should be few in number and should present to the jury the law applicable to the issues in the case in simple language and
The brief of appellant consists of 28 pages of carefully prepared criticisms upon instructions given and the action of the court in refusing to give a portion of those requested by defendant. Many of the points presented are quite technical and not entitled to consideration. Where not contradictory, instructions should be considered as a whole.
The first instruction given by the court upon its own motion is of considerable length and will not be copied. It consists of a statement of the averments of the petition. The opening' sentence is that the action is brought “to recover the sum of $5,000 as damages, on account of the failure of the defendant to properly treat and care for an injured foot of the defendant.” (The word “defendant” is conceded to be a clerical or inadvertent error.) The objection to the instruction is that it fails to use the word “alleged” or one of similar import, but practically informs the jury that there was a failure to. properly treat plaintiff’s foot and the suit is brought on that “account.” It is true that the instruction would have been more skilfully drawn had it contained a statement of wha.t the allegations of the petition were, instead of telling the jury what the suit was for. The language above quoted is followed, by a statement of what the plaintiff “alleges in his petition,” and tlie statement properly covers those allegations. We can detect nothing which by any reasonable interpretation could, in view of other instructions, have any tendency to mislead the jury as to wliat the issues were. The! second and third instructions in a condensed form fully state the contents of the answer that it admitted that he was a physician and surgeon, denied all other allegations of the petition, and alleged that whatever damages 'plain
The third instruction told the jury that the reply denied “each and every allegation of new matter” in the answer. Objection is made to the words “new matter.” These words are copied from the reply. The attack should have been made upon the reply, instead of upon the instruction, which followed its language. In Western Mattress Co. v. Potter, 1 Neb. (Unof.) 627, we held that, “if a reply denies ‘each and every allegation of new matter’ and is not assailed by motion, it will be held good after verdict.” It is also the well-settled law'- of this state that if a cause is tried upon the theory that the averments of an answer are denied, even if no reply is filed, objection cannot afterward be successfully made to the pleadings in that regard.
In instruction numbered 4|, informing the jury of the material allegations of the petition which must be established by plaintiff, the fourth subdivision thereof was that, “on account” of the negligence, etc., the plaintiff suffered the injuries complained of. In other Avords, the jury must find that the injury was suffered on account of the negligence. The same meaning would have been conveyed had the language been “by reason of.” The contention is without merit.
The petition alleges that the treatment of plaintiff’s foot by defendant Avas careless, negligent, and unskilful. There was evidence which tended to prove that an incision made in plaintiff’s foot, so soon after he had stepped upon and punctured his foot with the needle, was not skilful nor necessary treatment. Plaintiff testified that he was not asked for, nor did he give, his permission to the making of that incision. The court instructed the jury that defendant “had no right to make any other or different incision in the foot of the plaintiff than defendant had obtained permission or plaintiff had requested him to malee.” The defendant asked and the court gave instruction numbered 14 of those requested by him, in which it is said: “Consent to an operation will be presumed from
Complaint is made that the court refused to submit defendant’s theory of the case to the jury by proper instructions. This contention is not sustained by the record. There were 11 instructions given upon defendant’s request. These, with the instructions given by the court upon its own motion, sufficiently submitted all material phases of the case. The first instruction asked by defendant and refused does not contain a correct statement of the law. It is to the effect that if plaintiff’s foot was infected at the time he first called upon defendant for treatment, and that such infection produced the injury complained of, the verdict must be in favor of defendant. This left the question of unskilful treatment subsequent to the beginning of the treatment entirely out of the case. The proof is clear that infection can often be successfully treated. There was no error in the refusal to give the instruction. The second instruction, also refused as asked, but modified and given, Avas in part a repetition of the first. The remainder thereof was sufficiently covered by its modification by the court and other instruc
It is insisted that the damages awarded are excessive. The verdict and judgment were for the sum of $2,000, plus interest to be hereafter noted. A resume of the evidence can hardly be said to be necessary here. If defendant was negligent (and of that the jury were the judges), and if plaintiff was guilty of no contributory negligence (and of which the jury were the judges under the evidence), and his sufferings and present and past conditions are attributable to the negligence of defendant (and of which the jury were the judges), the verdict, while probably somewhat liberal, cannot be said to be so far in excess of compensation as to require the interference of the court.
By the verdict the jury found in favor of plaintiff and assessed “the amount of his recovery at the sum of $2,000, and interest thereon at the rate of 7 per cent, per annum from the 12th day of August, 1908, a total of $2,169.13,” for which amount judgment was rendered. It is conceded by plaintiff that he was not entitled to interest on the damages assessed, and he filed a remittitur of the interest allowed by the jury, and consents that the judgment be modified and affirmed for $2,000 as of date of its rendition, to wit, October 30, 1909. The judgment will therefore be so modified. The remittitur was filed in this court after the appeal had been taken and all briefs filed. Therefore the costs made after the rendition of the judgment by the district court and the costs in this court will be taxed to plaintiff.
The judgment of the district court for and to the amount of $2,000 is affirmed, and the costs taxed to plaintiff as above.
Affirmed.
Dissenting Opinion
dissenting.