172 F. 191 | 8th Cir. | 1909
Johnson brought this action against Ruth to recover damages which he claims he suffered by reason of the negligent performance of an operation upon himself by Ruth for appendicitis. The act of negligence specified in the petition is that Ruth unskill fully, negligently, and inattentively permitted a sponge or pad of gauze about ¿4 inches long and 9 inches wide to remain in the abdominal cavity of Johnson after the sewing up of the wound. Johnson recovered a judgment in the trial court, and Ruth has removed the case here to secure a reversal thereof. Numerous errors are assigned to the rulings of the trial court. The point most seriously urged for reversal is the refusal of the trial court at the close of all the evidence to direct the jury to return a verdict for 'the defendant. This renders it necessary to review the evidence given at the trial.
There is evidence in the record from which the jury would be fully justified in finding the following facts:
On March 30, 1901, at Keokuk, Iowa, Ruth for a consideration agreed upon, at the request of Johnson, performed upon the latter an operation for appendicitis. When Ruth opened the abdomen, he
On January 1, 1908, the wound had healed, and Johnson for the first time was able to have a natural movement of the bowels. The size of the piece of gauze taken by Clark from Johnson was 9 11½ inches by 113/(} inches. That the pads used at the time of the operation by Ruth were from eight to ten inches square. That with free open drainage such as existed in this case the gauze could have remained in the abdominal cavity without any further disturbance than did actually occur. That the gauze pad had been in the abdominal cavity from 90 to 100 days. That, after Johnson came to Dr. Morrow, there never was at any time prior to the operation of Dr. Clark an opening in Johnson’s abdomen large enough to have permitted the introduction of the pad of gauze removed therefrom. That the presence of the gauze in the abdominal cavity was the cause of Johnson’s illness subsequent to the operation for appendicitis. There was evidence tending to show that all of the pads of gauze that were placed in the abdominal cavity of Johnson at the time of the operation for appendicitis were removed, but no witness had any actual knowledge as to whether, they were or not. Ruth testified himself that he did not "know how'fnany pads were placed in the abdominal cavity, and the nurses who seemed to have charge of furnishing the pads or sponges at the hospital could only testify that the pads were removed .by reason of the fact that they were always removed in every case. No witness had a distinct recollection of what was actually done in this particular case with reference to removing the gauze pads. It thus appears that when all the evidence was in there was one question for the jury, and that was, Did Ruth sew up the wound after his operation upoti Johnson and allow a pad of gauze 9 *4 inches by 11inches to remain in the abdominal cavity? And this was the only question left to the jury by the court; it being conceded that, if Ruth did do this, he was guilty of negligence. The jury found the issue submitted to them in favor of the plaintiff and against the defendant, and no court would be’ authorized to say that there was not sufficient evidence to support their finding.
It is further assigned as error that the court erred in allowing Drs. Courtwright, Scroggs, and Dorsey to answer hypothetical questions in the following language:.
“Assuming that an operation was performed for appendicitis, and the main incision was closed up and a stab wound made with a drainage-tube in it, and a pad of gauze !)% by 11% inches was sewed up in the wound and remained there for a period of about 98 days. State-whether or'not-to leave it there that length of time would he the exercise Of ordinary care, 'skill; and attention on the part of the surgeon'in charge of the operation.” '' ,
But even if plaintiff in error is right that the questions in the .form they were put were for the jury and not for the witnesses, which we do not stop to determine, we are constrained to hold their allowance was not prejudicial error for the following reason: There can be no contention, and counsel for Ruth made none, that the placing of the gauze
The court so treated the matter in its charge, and said to the jury:
“The difference between the parties on which they do not agree and on which you must find where the truth is being as to when and where and by whom was the gauze put into the cavity and allowed to remain.”
This was the only question over which there was a contest in the trial of the case, and the only question submitted to the jury for decision. In view of the evidence and the admissions made in open court by counsel for Ruth during the trial that the placing of the piece of gauze in the abdominal cavity and allowing it to remain there as described in the evidence would be negligence, we do not think they can now complain of the action of the court in allowing the question complained of to be answered.
We have examined the other errors assigned in the record, and find them without merit.
The judgment of the trial court is affirmed.,