88 N.J.L. 191 | N.J. | 1915
The opinion of the court was delivered by
This is an action for damages against a physician for negligence in the performance of an operation.
This was the precise error for which this court recently reversed the judgment in the case of Hughes v. Atlantic City Railroad Co., 85 N. J. L. 212, where the jury was instructed that if the plaintiff proved that he had been injured by the bursting of an electric light bulb, the burden shifted to the defendant to exculpate itself from the charge of negligence. The doctrine of res ipsa loquitur happened to be involved in that case, but Mr. Justice Swayze, in his opinion, said: “He [the trial judge] thus put upon the defendant, in a case where there was no direct evidence of negligence, a burden from which it would have been free in a case where there was direct evidence!’ The concluding words correctly state the rule applicable to the present case.
The same rule is discussed, and admirably stated by Mr. Justice Pitney in a recent case in the United States Supreme Court. Sweeney v. Irving, 228 U. S. 233.
The direct violation of this rule in the present case cannot be condoned upon the ground that plaintiff’s counsel may have had in mind the evidential rule as to the duty of going forward with the testimony to overcome a presumption or a prima facie case made during the trial. If so, the language of the request was singularly inept for such a purpose; moreover, after the evidence is all in and the jury is being instructed as to its duties in arriving at a verdict, “the burden of proof” has a fixed and definite meaning. It is not a question of words or of mere form of expression but of a very substantial and fundamental right; as was said by this court in Bien v. Unger, 64 N. J. L. 596, “This right of the defendant to have his plaintiff bear the burden of the affirmative is a. substantial one and not a mere matter of form.”
The practically injurious nature of the request will at once be apparent when it is remembered that in the present case the operation, although performed by the defendant, a private practitioner, was performed by him in a hospital where he was assisted by trained resident nurses, presumably in the employ of the hospital and familiar with their duties.
For the reasons given, the judgment of the Supreme Court is reversed, and a venire de novo awarded.
For affirmance—Kalisoh, Black, Heppenheimer, JJ. 3.
For reversal—The Chancellor, Ciiiee Justice, Garrison, Swayze, Trenohard, Parker, Bergen, Minturn, Yredenburgii, White, Williams, JJ. 11.