Richards v. Willard, Appeal, No. 219

Appeal, No. 219 | Pa. | Jul 15, 1896

Opinion by

Mr. Justice Green,

This is a case of extraordinary and unusual character. The plaintiff claims damages against the defendant for negligent surgical treatment for an injury to his leg. He alleges that he ' had sustained a fracture of both bones of his leg at a short distance above the ankle joint, and was treated not for a fracture but for a sprain, and was thereby greatly injured. It is not claimed that the treatment he received was improper treatment for a sprain, but that it was entirely incorrect and inadequate treatment for a fracture. The defendant denies most positively that there was a fracture and his testimony is supported by that of two other surgeons who saw and examined the plaintiff’s leg on the day, and immediately after the injury was sustained, and also a number of surgeons who examined it at subsequent times and testified that in their opinion there never was a fracture. If there was no fracture the plaintiff has no case. If the subsequent condition of suffering and illness of the plaintiff was produced in whole or in part by acts of contributory negligence on his part, he could not recover, and on both these points the court so instructed the jury.

The great controversy in the cause turned upon these two points, and especially upon the question whether or not there ever was a fracture. The singularity of the case arises upon the character of the testimony and the conflict developed as to the great leading fact. The alleged fracture was declared by the plaintiff’s surgical witnesses to be a compound fracture of both bones of the leg, the tibia and fibula, at a point about one and a half to two inches above the ankle joint. The fracture of the tibia, or shin bone, was by far the inost important. One surgical witness for the plaintiff, Dr. Enfield, testified that ho saw the plaintiff for the first time on December 23, 1890, at his office in Bedford, the accident having occurred on December 5, at Allegheny City, and that he readily and.in a very few minutes found a complete fracture of both bones. In the fracture of the tibia the lower portion of the bone projected up over the upper portion about half an inch, and made a distinct ridge easily perceived by the eye and of course by the touch. This was eighteen days after the accident. . One other surgical witness, Dr. Calhoun, was called in and saw the leg on January 23, 1891. He also testifies that he inserted his finger in a hole in the leg which had been produced by suppuration and found the ends of broken bones overriding each other, and testified that there was a fracture of the tibia. He knew nothing about the fibula.

The foregoing was the whole of the original surgical testimony given by the plaintiff to establish the fact of fracture. Two other surgeons were examined by the plaintiff, but neither of them saw the leg until long after the accident, and they only testified as to general matters connected with, or relating to fractures and treatment. Their testimony and that of Drs. Enfield and Calhoun constituted the whole of the plaintiff’s surgical testimony.

All of them, and all of the other surgical testimony in the case establish that fractures of the tibia are most easily discovered, generally they are directly visible to the eye without the help of manipulation. But by means of slight manipulation such fractures are detected without the slightest difficulty. The reason is that the tibia has very slight covering over it in the way of muscles, tissue or flesh. The bone can be readily felt by the fingers over its whole length and especially near the ankle.

One of the surgeons, Dr. Hartmyer, testifying upon this subject, and explaining to the jury why it would be easy to detect such a fracture, said, “ Why simply because the deformity in a fracture of that kind would be so great that to the naked eye of an experienced man the fact would reveal itself at once that the fracture existed and by manipulating that leg I dare say that it would be impossible for any man under the sun that knows anything about anatomy in the first place and surgery in the second place to make that mistake; it would be an utter impossibility.”

Dr. Enfield, the plaintiff’s principal witness, was asked: “ Q. Now will you state what in your experience and from your knowledge of medical science is true as to this point of the anatomy, the leg, in reference to the discovery of a fracture at this point ? A. They can be discovered more readily than perhaps any other portion of the body. Q. Why is that? A. That is owing to the thin covering of the muscles over the parts and owing to the fact that there is little swelling takes place in a fracture at this point. The tissues are compact and not so full of cells, and you can usually by the guide of the bone, especially the sharp spine that is along the tibia, as a guide, you can usually discover the fracture in that bone, and there is almost always deformity at this point.” There was abundant other testimony to the same effect.

Now bearing in mind that the establishment of a fracture was an essential and fundamental condition of the plaintiffs right of recovery, it becomes necessary to recur somewhat to the testimony of the defendant. The accident happened at about noon on the 5th of December, 1890. The first surgeon who was called to see the plaintiff after the injury was Dr. McClelland. He said he made a careful examination of the leg in the usual manner “ by manipulation and the ordinary means employed to make an examination by inspection and manipulation,” and found that the patient was badly bruised but there were no bones broken. Being asked, “ Q. Was there any fracture, Doctor,” he replied, “ There was no fracture.” He advised that the plaintiff be sent to the hospital, which was accordingly done. Dr. McClelland was recalled later, and said he had examined the plaintiff at the time of the second trial which was hi June, 1893, and had not seen him from the time of his first examination until then. He repeated that there was no fracture at the first examination, and he was then asked a long question which described the fracture as testified to by Drs. Enfield and Calhoun, and was asked: “ Q. Was there ever such a fracture as that on this man’s leg? A. I would say not. Q. Will you tell the jury why you say that ? A. I say that because there was no evidence of fracture when I saw him first and I found no evidence of fracture when I examined him last.”

The next surgeon who saw the plaintiff after the accident was Dr. Marshall, the resident surgeon at the hospital. He went with the ambulance and assisted to remove the patient to the hospital, first making an examination at the place where he found him. After he reached the hospital the patient was undressed and put to bed, and he then proceeded to make a full and thorough examination of the leg, by all the usual and well known methods practiced by all surgeons in such cases. He compared the two legs for shortness, manipulated the limb with his hands, following the bones as far as he could. He then examined for crepitus and then tried it for mobility, by taking hold of it by the heel and twisting it, holding the leg fixed. He was unable to find any evidence of fracture and diagnosed the case as one of sprain and concussion and treated it accordingly with hot compresses and hamamelis extract, to allay pain and reduce swelling and inflammation. About 4 o’clock the same afternoon Dr. Willard came in, and he also examined the patient, going over all the methods usual in such cases. No evidence of fracture was discovered and the treatment for subduing inflammation was continued. The next day Dr. Willard called again and made another and fuller examination, trying the leg in every way by comparison for shortness, for crepitus and mobility, and by tracing the spine of the tibia with his fingers to see if any evidence of fracture could be discovered. No fracture was discovered or any evidence of any and the treatment was continued for sprain and concussion.

Dr. Willard himself describes the method of his examination. He says, “ The next examination was made I think a day or so afterwards, and then the examination was more thorough. I would take the leg in both hands, one hand at the heel and the other at the ankle joint and made the ordinary manipulations. Q. Now what were those? A. Well it was from one side to the other, up and down; those were the ordinary manipulations, in the first place to find out if there was any crepitation and in the second place by putting it side by side we would see if there was a fracture; the portion of the bone perhaps could be felt by the finger. These are the manipulations ; taking this portion of the heel in my hand and working it backwards and forwards in that manner and then working it up and down so ” (explaining to the jury). He had previously stated in the other part of his examination, thus : “ I then examined him by running my hands over the spine of the tibia, down the course of the fibula, didn’t make much motion, compared one leg with the other to see if there was any shortening; there was no apparent shortening at all.” He made several of these examinations while the patient was at the hospital, four or five in all. He was asked, “ Q. Well, doctor, what conclusion did you arrive at as regards this ease? A. That there was no fracture.”

Now there was not a particle of testimony in the case that this was not the usual, correct, proper and sufficient method of examination in ordinary use by all surgeons, and so far as this subject is concerned there was no testimony to the effect that this was incorrect practice in any degree. Three skilled, competent and careful surgeons, in full practice, testified, after having seen and carefully examined the plaintiff immediately after the accident and on succeeding days, that there was no fracture of the leg. The treatment given to him was the proper and usual treatment if there was no fracture, and there was nothing in the testimony upon which a right of recovery could be based, except that there was a fracture in fact, which was not discovered by any one of these three surgeons, but was discovered by two other surgeons, the first of whom saw the' patient for the first time eighteen days after the accident, and the other of whom first saw him forty-eight days after that event.

On behalf of the defendant six other surgeons were examined, several of them of the largest and most extensive experience, thoroughly competent in every way, all of whom examined the plaintiff’s leg at different times, and every one of whom testified that in his opinion the leg never was fractured, giving his reasons with much detail. Dr. Hartmeyer, one of these witnesses, was asked whether judging from his examination of the leg, there had ever been a fracture, and he answered as follows: “ A. From the evidence I find after careful examination durmg the last trial, I would say it never existed. Q. And, doctor, to what do you attribute the present condition of Mr. Richards’ limb ? A. The present condition as I find the evidence there now, I would attribute to a high degree of inflammation, to caries, and a part of it due to the surgical interference subsequent to that; operative procedure in other words. Q. Doctor, referring to the spine of the tibia on Mr. Richard’s limb, I wish you would state whether you examined that closely ? A. I did. Q. If there was a fracture of the tibia you might state whether it would be shown upon that bone ? A. If there was a fracture as described it most undoubtedly would be shown; it couldn’t fail to be shown. Q. And did you make a special examination of the spine of the tibia with reference to that ? A. I did. Q. Is there any evidence, Doctor, that the spine of that tibia or any portion of it at a point about an inch and a half above the ankle joint was ever cut off ? A. No, sir, I found it intact.”

Dr. Hamilton, a surgeon of forty years or more, and in the service of the Pennsylvania Railroad Compaq for over thirty years and who had seen six or seven thousand cases of accidents to their men, testified that he had examined the plaintiff’s leg three times, and being asked whether there had been a fracture, said, “ There is no evidence to me that he had a fracture at the time stated, nor of the kind referred to. I don’t think he could have had such a fracture and have his limb present the appearance that it does at the present time.” He then explained to the jury fully the reasons for his opinion, among others, that he had followed the spine of the tibia down to the ankle bone and it was perfect without any line of deformity, and that there was no evidence that the bone of the tibia had ever been thrown forward a quarter or a half of an inch. He also measured the legs and found them absolutely of the same length. Dr. Buchanan, a surgeon of large experience, testified that he had examined the plaintiff’s leg carefully and found no evidence that there had ever been a fracture. Pie was asked, “ Q. In your judgment was there ever such a fracture as detailed by his surgeons in his case ? A. No, sir.” Dr. Murdock, a surgeon of more than forty years with an enormous experience in the hospitals, in the army all through the war, and in his private practice, testified that he had examined the plaintiff’s leg very carefully by feeling it, measuring it and comparing it with the other leg, and the fracture as described by the plaintiff’s surgeons having been explained to him, said, “ There is no evidence of there ever having been such a fracture.” He said he measured the leg and found no shortening in it, that he had run his finger down along the spine of the tibia and found no prominence or depression at the place of the alleged fracture. Dr. King, a surgeon of thirty years experience in the army and the hospitals, and in his private practice, testified and gave the results of his examination of the plaintiff’s leg. He was asked, “Q. Well, doctor, from your examination of that wound, what is your opinion as to whether it ever was fractured or not, as described? A. I don’t believe it was ever fractured.” Pie explained the reasons for his opinion very fully to the jury. Dr. Dickson, a surgeon of twenty-five years practice, very largely in the hospitals and on railroads, said he had examined the plaintiff’s leg, and was asked, “ Q. And I wish you would state whether there was any fracture of the tibia and fibula as stated? A. I can see no evidence of that limb having been fractured at any time.”

In addition to all this Dr. La Place, who had treated the patient’s leg after Drs. Enfield and Calhoun were unable to help him, said the plaintiff had tuberculosis of the tibia, and that he treated him successfully for that disease. He also said he had found no evidence that there had been a fracture of the limb. This witness had been examined for the plaintiff but as his testimony was unfavorable he was examined by the defendant on the second trial. He was asked, “ Q. Did I understand that there was no evidence of a fracture? A. None. If there had been I would have seen it if it could be seen. Q. You don’t know whether there was a fracture there or not ? A. I can’t say with absolute certainty but I say this, that if there had been a fracture, it surely would have shown.” A vast amount of confirmatory evidence was given in the course of the very long examination of the surgical witnesses but it is too cumbersome to repeat in detail.

It is sufficient to say the great preponderance of the testimony, and that which was best informed and most reliable, tended to show that there never was a fracture of the limb such as was testified to by Drs. Enfield and Calhoun. The most experienced of the surgeons easily accounted for the conditions to which those witnesses testified. Dr. Hamilton said, “I think the action of the patient in leaving the hospital was very injurious to his limb and was the cause of his condition at present.” He was asked, “ Q. Doctor, where there has been an injury to a leg in the region of the ankle, followed in a few days by severe inflammation extending in and around the joint, which leg is examined by a surgeon at the end of three weeks from the accident, at which time the periostium is carried away or roughened, and the bone roughened, and small pieces of bone have come away, would a physician be liable to be mistaken as to his diagnosis as to that being a case of fracture ? A. He might be. He would be much more likely to be mistaken in his diagnosis than for the man to have gone home in that condition.”

Dr. Murdock being asked whether he would not expect Drs. Enfield and Calhoun to be correct in their diagnosis because they had examined the leg recently after the accident, replied, “ I would expect them to be correct, and I would say that Dr. Enfield was correct if I hadn’t examined this limb since and found that he was mistaken.” He was asked, “ Q. Well, suppose he got his finger into the wound, would the disease, tuberculosis, be likely to develop such a state of affiairs as to lead him to suppose that there was a fracture when no fracture existed? A. Yes. Q. How would that be ? A. Well, if he got his finger into a bone that was denuded of its periostium and in which caries was going on, it would convey to his finger the same sensation, or very nearly the same sensation, that the ends of the bone would after having been rounded off by some little period of time; the same sensation would be conveyed to his finger, and also if a probe was put in, the same sensation would be conveyed to the end of the probe as in the case of fracture, and in the case of disease he wouldn’t be able to tell the difference.”

It must be remembered that Dr. Enfield never effected any cure of the plaintiff’s limb, although he treated him for fracture. He continued to treat him for about a year. He said, “ Well, he failed to improve after Dr. Calhoun and I had operated on him several times. I sent him to Philadelphia to the hospital, and gave him a letter to Dr. Pancoast, describing his case.” It was at this time that he came under the treatment of Dr. La Place, who said that he discovered no evidence of fracture and treated him successfully for tuberculosis of the bone, which was the disease which he said the plaintiff really had.

It must also be rememberod that nobody has ever actually seen this alleged fracture. Neither Dr. Enfield nor Dr. Calhoun ever opened the leg and obtained an actual sight of it. So far as their testimony goes it was simply their opinion that there was a fracture. But Dr. La Place did open the leg down to the bone, and cut away a considerable quantity of decayed bone and he said there was no evidence of fracture.

From the foregoing review of the testimony it is perfectly manifest that, so far as the plaintiff’s theory of the case is concerned, his right of recovery depended upon whether there ever was an actual fracture of the leg. If there was not there is not a spark of testimony in the case upon which a recovery could be based. This being so the question arises, was the case sufficiently presented to the jury in the charge of the learned court below to enable them to appreciate the real matters of contention, and to intelligently decide the cause on its facts. In the statement of mere general principles, and of the duties of the parties respectively as to the burden of proof, and the rule as to contributory negligence the charge was correct. But whether it was adequate in view of the precise character of the controversy and of the state of the testimony, is another question. For instance it is at once apparent that there was a very severe and fundamental contradiction in the testimony of the witnesses upon the vital question of fracture. Two surgical witnesses testifying from actual examination, declared that there was an actual compound fracture, one of both bones of the leg and the other of the tibia. But on the other hand three surgical witnesses for the defendant testifying also from an earlier and more complete and thorough examination, several times repeated, declared most positively and emphatically that there was no fracture whatever of either bone. Two experts who examined the leg a year or more later testified that in their opinion there had been a fracture. But on the other hand nine experts who also made examinations at the later date, declared that in their opinion there was not, and never had been a fracture. This included the defendant and Dr. McClelland. When the testimony of the latter is examined critically, it is found to be much more full, more detailed, more specific, accompanied by more comprehensive reasoning, and to have been given, at least as to some of them, by gentlemen of far greater experience and means of observation, than was possessed by any of the plaintiff’s experts.

And all this is followed by the testimony of one witness who was examined at first on behalf of the plaintiff and then for the defendant, and who fully sustains the views of the defendant’s experts, and testifies also that the plaintiff was affected by an independent disease which accounts for all the symptoms and conditions.

Upon reading the charge in its entirety we find it does not contain a solitary reference to the fact that there was any contradiction in the testimony of the witnesses, or that there was any opposition of views among the surgical experts, nor any reference to the weight of the testimony on the two sides, nor to the character of it. There is no explanation of it as being expert testimony, nor as to what that kind of testimony is, or what effect may or should be given to it in determining the case. Nor is there any statement or explanation as to how the jury should reconcile the contradictions if they could, or if they could not then how they should regard it or act in relation to it. As the fate of the case in the hands of the jury absolutely depended upon the surgical testimony, there certainly should have been instructions upon that subject so as to enlighten the jury as to their duty in regard to it. Then too there should have been a presentation of just what the issue was, a statement of the matter of fact upon which the case turned, as for instance that the question of fact which they were to consider was whether there was a fracture of the leg in point of fact, or not, and also whether the treatment administered by the defendant to the plaintiff was in accordance with the usual and ordinary treatment practiced by competent surgeons in such cases. Instead of this the chief tenor of the charge was, that the jury should determine generally whether the defendant was negligent in his treatment of the case, and while they were told they should determine whether there was a fracture, there was no explanation as to how that question arose under the testimony and in what way they were to consider or apply the testimony. As the actual fracture was not seen, it was only a matter of opinion whether it existed at all, and the value of the particular testimony depended upon the competency of the witness to form a reliable opinion, upon the extent and character of the examination he made, upon the reasons given by him in support of his opinion and upon their judgment as to the weight and character of the testimony submitted on both sides in support of the respective contentions. All this should have been explained to the jxxry with suitable comments and instructions sufficient at least to get them on the right trade of inqxxiry and deliberation. The case is peculiar. It is nothing like cases in which mere facts, or events of actual occurrence, are described, or even the conduct and declarations of parties, but where the opinions of witnesses as to whether a given condition or state of fact exists are very largely, almost entirely, to be depended upon. In the case of Tietz v. Phila. Traction Co., 169 Pa. 516" court="Pa." date_filed="1895-07-18" href="https://app.midpage.ai/document/tietz-v-philadelphia-traction-co-6243110?utm_source=webapp" opinion_id="6243110">169 Pa. 516, we held that a charge is inadeqxxate which does not fairly present the whole case to the jury with a clear statement of the rules of law applicable to the questions involved. We think the charge was not an adequate presentation of the case to the jury and therefore sustain the nineteenth assignment of error. We think that the eighteenth assignment is also sustained. The part of the charge complained of here, was an attempt to distinguish between the injury to the plaintiff, supposing he was negligently treated, up to the time of his leaving the hospital, and the injury which resulted from his own negligence in leaving the hospital when he did, and his subsequently going to Willrinsburg, remaining there five days without any treatment, and then traveling to Bedford, upwards of two hundred miles distant, for further treatment* That the plaintiff’s act of leaving the hospital at the time he did and in the condition he was then, was an act of negligence on his part, cannot be questioned. Now his subsequent conduct in traveling to Willrinsburg and Bedford, if it resulted in the severe consequences that followed, was still more negligent according to the universal testimony of all the surgeons. Whether he would have been cured if he had remained at the hospital a longer time, as Dr. Marshall testified he would have been, cannot now be known because of his own voluntary act of leaving.

It is impossible, therefore, to distinguish between the consequences which resulted from his ultimate act of leaving, and those which might have resulted if he had remained. He might have been cured if he had remained, or he might not, and it is not possible now to determine that question. But that impossibility results from his own action, and therefore no distinction can be made, as the source of a right of action, between the consequences which might have happened had he remained and the consequences which did happen after his departure. The idea of the charge was that if the plaintiff was negligent after leaving, and therefore could not recover, he still could recover for his suffering and pain while he was at the hospital. The answer to that is that it is not possible to determine that question, because, notwithstanding his subsequent sufferings he might have recovered if he had remained. Now as to his subsequent contributory negligence the evidence is simply overwhelming and is really not contradicted. Nearly all the surgeons were inquired of as to that, and they all concurred in their views. Even Dr. Enfield admitted that his traveling from the hospital to Willrinsburg, and from there to Bedford, would have a very bad effect upon the patient. He was asked, after describing in the question the journey and the use of the leg, and the effect upon it, “ Q. and the bones would cut through the flesh? A. They might. ,Q. Well they did it, didn’t they? A. Well there was a hole there. Q. And wouldn’t everything you saw in relation to that man’s condition, as he came to you at Bedford, be explainable upon the idea that in this traveling and this motion the fragments had cut themselves through the skin? A. It might have produced the result, yes, sir. Q. And didn’t you swear on the last trial of this-case, ‘ The bones would cut as Richards was walking around and moving the limb, the ends of' the bones would cut as the muscles would contract, would draw apart and injure the soft parts, and open the skin to the outside, by which germs would get in there and produce the condition I found him in ’ ? A. Yes, sir, that is correct. . . . Q. Could fragments of the bone cut their way through the flesh in less than six days and hasten blood poisoning? A. Yes, sir. Q. Was the inflamed condition of the wound, the death of the bone and blood poisoning attributable to inflammation, caused by the moving of his limb about, laceration and abscesses and entrance of air to the injury? A. I think so, yes, sir.”

Dr. Hartmeyer was asked a long question which described the movements of the plaintiff after leaving the hospital as testified by himself, and at the conclusion he was asked, “ Did the action of the plaintiff contribute to produce his condition, as found by the doctors on his arrival at Bedford, and subsequent thereto ? A. Well, most emphatically. If the man only had an injured joint, if he had an inflammatory action there at all, that would be, I consider, almost suicidal for a man to attempt anything of that kind, and, if a fracture existed, as a matter of course it would be a great deal worse. Q. What would you say as to the possibility of a man making a trip, and making the movements as I have described them ? A. What do you calculate in the possibility, fracture as described in this case ? Q. Yes. A. Well I don’t know anything about a man’s physical endurance, but it doesn’t seem possible to me that a human being would be able to undertake an action of that kind.” The witness then explained at length the reasons why it could not be done.

Dr. Plamilton was asked the same long question as Dr. Hartmeyer and his answer was, “ Assuming that he had that condition of limb and that he survived and did all those things it is a wonder he is alive.” And again, “ I think the action of the patient in leaving the hospital was very injurious to his limb and was the cause of Iris condition at present. I can’t think otherwise.” He further testified that he did not believe the plaintiff had any fracture because he could not possibly make such a journey if he had.

Dr. McClelland was asked the same question, concluding with the inquiry whether the journey contributed to the condition in which the plaintiff was when he reached Bedford, and his reply was, “ My opinion would be that that would be entirely sufficient to account for the conditions that'were found by Dr. Enfield at the end of the journey.” He gave his reasons in detail, and further testified that he did not believe there was any fracture because if there was the plaintiff could not have made such a journey. Dr. Buchanan was asked the same question and made a similar answer. Dr. Murdock was asked the same question, and in reply to that part of it which inquired, whether the action of the plaintiff contributed to produce the condition as found by Dr. Enfield, on the arrival of the plaintiff at Bedford, he answered, “ It certainly would, sir.” He also said there was no fracture because it would have been utterly impossible to have made the journey if the plaintiff had such a fracture at the time.

Dr. King also said in reply to the same question, “ Yes, sir, the travel would do that.” When asked to give his reasons he said, “ Well if he had a fracture without a splint on, the movement of the fracture caused by his traveling would so irritate the surrounding parts that inflammation would set up, and the probability is that owing to the proximity of the artery of the foot to these fragments, admitting that it was a fracture, the sharp edges of these fragments would probably cut off the artery or at least endanger it, at any rate it would get up such an inflammation that the foot would be gangrenous, it would produce gangrene of the foot provided he went through all you detailed.” Dr. Dickson was asked the same question, concluding : “ Did the action of the plaintiff, as stated, contribute to produce his condition as found by the doctor on his arrival at Bedford and subsequent thereto, assuming that the plaintiff did take this trip and was able to take it ? A. Most undoubtedly the action of the party would be contributory to the condition.”

Against all this formidable array of testimony there was not a single fact or opinion given in evidence. It was entirely uncontraclicted. It was manifestly impossible to set up a dividing line at the time the plaintiff left the hospital and attempt to separate- those consequences of alleged negligent treatment of the defendant, which occurred prior to the plaintiff’s leaving the hospital, from the ulterior consequences resulting from the plaintiff’s contributory negligence after he left. It is impossible to set up a standard because it is impossible to know what would have been the result of the defendant’s treatment if the plaintiff had remained at the hospital. The eighteenth assignment is sustained. The same reasoning applies to the fifteenth assignment, which is sustained. The sixteenth assignment is sustained because there is no evidence in the case which raises such a question. The fourteenth assignment is not sustained because the court was right in leaving the whole subject of what was said by the nurse to the jury. The nurse did not say explicitly that she told the plaintiff what reply the doctor had made as to the plaintiff’s leaving the hospital when he did. She implied that she repeated the doctor’s answer to the plaintiff, but she did not say so, and she was not asked the distinct question whether she did or not, and as to the eleventh assignment it is clearly not correct to argue that the plaintiff did not say that the doctor told him he could go home, because he did so testify. In his testimony however he did not say that the doctor told him he was cured, and in that respect the court was in error. Technically the court was in error in not stating the language of the witness with precision, but the more serious error was in not stating that the doctor denied having said in any manner, or in any words, that the plaintiff might leave. If there were no other reason for reversing we would not reverse on this ground alone, but as there was technical error in what the court did say we sustain this assignment. We do not sustain the second assignment because we think the answer of the court to the defendant’s second point was substantially correct. We do not sustain the fourth assignment for the same reason. The matter of the fifth assignment was for the jury and therefore we cannot sustain it.

The defendant was not entitled to the affirmance of his sixth point, simply because Miss Blosser did not distinctly say that she repeated to the plaintiff the words of the defendant, to wit, that if he left the hospital he did so on his own responsibility. She was not asked the question distinctly whether she did or not. She did say that Dr. Willard said those words to her but omitted to say that she repeated them to the plaintiff, and therefore the defendant’s sixth point could not be affirmed. The answer to the plaintiff’s third point was of no consequence and moreover it was correct in law, and we cannot sustain the seventh assignment.

We think the plaintiff must be held responsible for the consequences of omitting to have medical treatment after he left the hospital, and for his travel to Wilkinsburg and Bedford. He did not advise with the defendant as to those matters, and he cannot hold the defendant responsible for bis own voluntary acts in relation thereto. The answer to the plaintiff’s fifth point therefore, broadly affirming it as it stood, was erroneous, and hence we sustain the eighth assignment. The ninth and tenth assignments are not sustained, nor the twelfth, because they are without merit. We think the portion of the charge complained of in the thirteenth assignment was not erroneous and therefore that assignment is not sustained. The seventeenth, twentieth, twenty-first, twenty-second and twenty-third assignments are not sustained. This disposes of all the assignments except the first and third.

After a painstaking, careful and minute study of the testimony in this case we are constrained to say that we regard the verdict of the jury as an outrage upon the administration of justice. There was no aspect of the testimony upon which it could be justified for any such amount, in any event. The plaintiff’s case at the very best was of the most doubtful character. No verdict could be sustained at all except by striking down the testimony of ten entirely competent, disinterested witnesses, and accepting in its place the testimony of two witnesses who, whatever may be their personal merits, did not possess a tithe of the experience or means of observation enjoyed by the defendant’s witnesses. As to three of these who personally saw, and carefully and frequently examined the plaintiff’s leg immediately after the accident, when it could be best observed and considered, their testimony was absolute and positive that there was no fracture. They were all disinterested, entirely capable and, two of them at least, having a very large experience in this class of cases, and there is no reason discoverable in tbe testimony why their judgment and their evidence should be rejected in order to give place to tbe opposing testimony of two of the plaintiff’s witnesses, one of whom did not see the patient until eighteen days after the accident, and the other not until forty-eight days had elapsed. In the meantime the plaintiff’s conduct and action were such that even a fracture might have supervened on that account, but the most experienced and competent of the defendant’s witnesses were of opinion, and so testified, that every condition of the leg as seen by Dr. Enfield at Bedford could easily be accounted for by the conduct of the plaintiff after he left the hospital.

On the subject of the plaintiff’s contributory negligence in this regard there was no disputed testimony. It was established by all the evidence in the case, including that of the plaintiff’s witness, Dr. Enfield. No opinion of any witness was given to the contrary and it was therefore an undisputed fact in the case. The learned court below very properly charged the jury that if the plaintiff’s conduct was such, after leaving the hospital, as to contribute to his condition, he could not recover for such consequences as happened after he left the hospital. But the evidence being entirely undisputed on that subject, it must be regarded as establishing the fact of contributory negligence on tbe part of the plaintiff, -and hence the first and third points of the defendant should have been affirmed, and the case withdrawn from the jury. The learned court showed its appreciation of the verdict by promptly striking down two thirds of its amount, and might with still greater propriety have set the verdict aside altogether because of its being against the law and the evidence, and grossly excessive in amoimt.

It must not be overlooked that the medical and surgical service rendered by the defendant to the plaintiff was entirely gratuitous, the defendant receiving therefor no compensation of any kind. For many years Dr. Willard had been rendering such service to the hospital to which the plaintiff was brought after receiving his injury. He was one of a corps of physicians who, from motives of benevolence and charity, contribute, as they do in many other cities and towns, their time, their skill, their labor and their most valuable and humane service in relief of the sickness and suffering of their race. If such gentlemen are to be harassed with actions for damages when they do not happen to cure a patient and are to incur the hazard of having their estates swept away from them by the verdicts of irresponsible juries, who, caring nothing for law, nothing for evidence, nothing for justice, nothing for the plain teachings of common sense, choose to gratify their prejudices or their passions by plundering their fellow citizens in the forms of law, it may well be doubted whether our hospitals and other charitable institutions will be able to obtain the gratuitous and valuable service of these unselfish and charitable men. It is much more than probable that if this plaintiff had been content to remain at the hospital a week or two longer he would have been cured of his hurt. Because he would not submit to such a reasonable detention he apparently brought upon himself all his subsequent sufferings. If he chooses to take such risks he must .take the consequences himself.

The plain truth is that this plaintiff was probably afflicted with a tendency to tuberculosis, and when he received his injury that tendency became developed in the bones of his leg, and the disease called tuberculosis of the bone fastened upon him at the seat of the injury. Dr. La Place held to this theory and treated him for jt with success. When this witness testified for the plaintiff he was asked: “Q. Were there any broken bones in the limb; had there been a fracture ? A. No evidence of it at the time of my examination.” Continuing he said, “No particular bone was injured so far as was evidenced at the time of my examination ; at that time I discovered a tuberculous inflammation involving the totality of the ankle joint, extending into the substance of the lower end of the tibia and astragalus, disintegrating these and causing small pieces of bone to drop off from them with the rest of the products of inflammation.” On the second trial he testified, “What we mean by tuberculosis arthetis is this : There is such a disease as tuberculosis, that is very widely disseminated in nature. Sometimes it develops in people’s lungs and that is called consumption, and when it develops in a man’s anide it is called a tuberculosed arthetis. Now in this patient’s case, he had all the predisposition that a patient has to develop consumption, but inasmuch as he injured his anide that spot, that is the ankle, became the weakest spot in his body and having the predisposition to develop tuberculosis he developed tuberculosis of the ankle joint.” . . . . “ What I had. there was tuberculous disease ; there was no evidence of the fracture, there was no play of the bones at all, everything was united and solid and I didn’t care whether he had had a fracture or not; that didn’t enter into the case. He had tuberculosis of the joint. He came there to be treated for tuberculosis of the joint, and that I did for him.”

The foregoing theory is the only one that will satisfy all the facts in evidence.

Judgment reversed.