| N.Y. App. Div. | Dec 28, 1921
The plaintiff was seven weeks in the hospital under the defendant’s care for a broken leg. The defendant claims that at the expiration of that time there was no union of the bones. There is evidence that it is “ an exception to have a case go seven weeks without knitting.” The defendant has offered no explanation of this unusual result. On the other hand, the plaintiff testified that the defendant told him from time to time that the bones were knitting and that the leg was progressing satisfactorily. It appears from the evidence of the plaintiff and his wife and one of the hospital nurses that there was an unusual protuberance on the leg when the plaintiff left the hospital. It is admitted that when he returned about a month thereafter there was an overlapping of the bones and this condition continued until the second operation which gave a satisfactory result. There is no evidence of contributory negligence except that the defendant testifies that the plaintiff left the hospital prematurely .and contrary to his orders. But this is denied by the plaintiff who says that the defendant told him he might go home and return in about a month, which the plaintiff did. The evidence was such as to present a question for the jury and their verdict is not against the weight of evidence. They have found on sufficient evidence that when the plaintiff left the hospital there was a union of the bones but that they overlapped. This was so unusual and contrary to human experience that it was within the province of the jury to say that such result was due to the negligence of the defendant, especially as the second operation removed the difficulty and left the plaintiff in a normal condition.
The judgment and order must, therefore, be affirmed, with costs.
Present — John M. Kellogg, P. J., Woodward, Cochrane, H. T. Kellogg and Van Kirk, JJ.
Judgment and order unanimously affirmed, with costs.