30 Wash. 349 | Wash. | 1902
The appellant brought this action against the respondent to recover damages alleged to have been suffered by him because of the unsldllful and negligent manner in which he was treated for a fracture in the lower third of the femur of his left leg by the respondent’s surgeon. On the trial, at the close of the appellant’s case, the respondent interposed a challenge to the legal sufficiency of the evidence, which challenge the trial court sustained; taking the case from the jury and directing a judgment for the respondent. The challenge was based upon two grounds: (1) That the respondent undertook to treat the appellant gratuitously, and is liable only for the failure to use ordinary care in selecting the surgeon, and that there was no evidence tending to show that it had been negligent in selecting the surgeon; and (2) that there was no evidence that the surgeon selected treated the appellant in a negligent or unskillful manner.
The facts bearing upon the first ground of challenge are substantially these: The respondent is a railway company, and the appellant was one of its employees. The appellant was injured by falling over a low switch stand in the yard of another railway company while on his way from his place of employment to his home after quitting his work for the day. He was immediately taken to the hospital with which the respondent had arranged for the care of its injured employees, and there placed under the treatment of the respondent’s surgeon. The appellant had been in the employ of the respondent for some two and one-half years. During that time the respondent had deducted monthly from his wages certain fixed sums, based on the amount paid him, which it had retained and credited on its books to its hospital fund.
The respondent’s contention that it undertook gratuitously to treat the appellant is rested first upon the fact that the appellant was injured after he had ceased work for the day, and the claim that there was no evidence that it contracted, for a consideration, to treat him for an injury so received. But it seems to us that unless its answer, to the effect that it undertook to treat only such of its employees as should be injured in the course of their employment, is to be taken as conclusive, there was here some evidence from which the j ury might have found that its liability was not thus limited. The respondent may, it is true, fix the terms upon which it will receive any one into its service. This it may do by special contract, or by general rules called to the attention of those seeking employment in its service; but, in the absence of such special contract or general rules, the contract is such as the law implies from the acts of the parties and the surrounding circumstances, and cannot be governed by any secret or undisclosed limitations either of the parties may have in mind. Here the acts of the parties, the surrounding circumstances, and the conduct of the appellant with relation to the fund collected, are as much consistent with the idea of contract to treat the employees for injuries received in whatsoever manner, as it is of one to treat only for injuries received in a particular way; and the question was therefore one for the jury, and not the court. But there is another ground for requiring the question to be submitted to the jury. There was evidence tending to show that the respondent had never made it known that it claimed that its contract was only to treat its employees for injuries received by them in the course
ISTor was the answer to the interrogatory conclusive of the question of the respondent’s liability, although introduced in evidence by the appellant. Answers to interrogatories are in the nature of admissions. While the party calling for them may put them in evidence for the admissions they contain, he is no more bound by their statements against his interest than he is bound by the statements of a witness he may call, and who may testify in part against his interest. He can still introduce evidence contradictory of such statements, and leave it to the jury to determine wherein the truth lies. Moreover, the right to contradict answers to interrogatories, though introduced by the party calling for them, is expressly granted by statute. Ballinger’s Code, § 6012; Denny v. Sayward, 10 Wash. 422 (39 Pac. 119).
The second ground is that the evidence is insufficient to make a case for the jury, under the rule of Richardson v. Carbon Hill Coal Co., 10 Wash. 648 (39 Pac. 95). This claim is founded upon the concluding part of the opinion in that case, where this language is used:
“But, suppose the contention of the respondent to be true that the appellant so conducted itself that it caused the respondent to believe that it was furnishing to him surgical treatment, and that it is estopped from denying that such was the fact, does it follow under the facts of this case that it is liable for the malpractice of the physi*355 cian? We think it does not. This hospital was maintained and the physician provided for the sole purpose of relieving sick and injured employees without expense to them and without any intention on the part of the company of making any profit out of the undertaking. It was therefore a charitable institution and it was supported by the contributions of employees, and carried on in their interests. And if the company did employ the physician, as claimed by respondent, to look after and treat the sick and injured, it is not liable for his negligence, but is responsible only for want of ordinary care in selecting him.”
But it must not be overlooked that this expression had reference solely to the facts shown in the record then before the court. In a previous part of the opinion the court stated that there was positive testimony to the effect that the coal company had no physician in its employ and maintained no hospital; that the doctor whose malpractice was complained of was actually employed by a committee of the employees who contributed the funds; that the hospital where the injured employee was treated was under the control of the same committee; that the respondent in that case knew that there was a doctor at the company’s mines and some kind of a hospital, and concluded from those facts that the company had contracted to furnish him the privileges of a hospital and the service of a physician. In such a case it was, perhaps, proper to say that, conceding the company was estopped to deny that it employed the physician, it could be held only for want of care in selecting him, for the hospital seems not to have been under the company’s control, and the court expressly states that there was no intent on the part of the company to make a profit out of the undertaking. In reality, therefore, the company was merely a trustee of the fund. In the case before us it is conceded that there was some form of contract, the evidence being in dispute only as to its extent.
“If, on the other hand, the company was conducting a hospital with its own physician for the purpose of deriving profit therefrom, or if it contracted with the appellant to furnish him with the services of a competent physician, and to properly treat him in case of an injury, it would be liable for the negligence or want of skill of its physician in attending him.”
On the second appeal the opinion in consideration was delivered. On the third appeal (18 Wash. 368, 51 Pac. 402, 1046), it was said that the case was really reversed on the second appeal because testimony irrelevant to the issues had been admitted on the trial. The only inference that can be drawn from this is that the court concluded on the second hearing that there was not sufficient evidence to justify a finding on the part of the jury that the company was conducting a hospital for the purpose of deriving a profit therefrom, or that it had contracted to treat the injured employee for his injury. It is not authority for the broad proposition that an employer, where he maintains a hospital for profit, or contracts, for a consideration, to treat his
Was there any evidence of malpractice on the part of the surgeon? The appellant, after being taken to the hospital, was taken in charge by the respondent’s surgeon. The surgeon reduced the fracture, and bandaged to the leg, to hold the fractured bones in place, a long splint, reaching from under the arm to the foot; placing the leg, after being so treated, between small sand bags; using no extension or counter extension appliances. It was testified by one of the witnesses that the surgeon stated at the time that this treatment was only temporary, and that he would permanently fix it in the morning, but that in the morning, after an examination, he concluded that it was well enough as it was, and left it in that condition for some three weeks. It further appeared that at the end of that time the surgeon removed the splint, but immediately replaced it, leaving it on the leg for some two weeks more; that he then removed the splint permanently, telling the patient to use the leg as much as possible; that the patient did attempt to comply with the doctor’s directions, but found he could not bear any weight upon the leg, could not bear to have it hang down, or even touch it upon the floor; that the doctor thereupon put it in a plaster of paris cast, whereupon the patient was taken to his home, where he remained in bed some ten days more, when the cast was removed.
It was on this branch of the case that the trial judge sustained the challenge of the respondent to the sufficiency of the evidence. From his remarks when passing upon the motion, it would seem that he reached this conclusion from the fact that the appellant’s expert witnesses testified that bad results were liable to follow from this character of injury, no matter how skillfully the injury may be treated, and that the results finally obtained were not worse than might have been expected. But it seems to us that this is not conclusive of the respondent’s liability. To secure the result finally obtained, the appellant was obliged to submit to a second operation, with its accompanying dangers, delay in recovery, and consequent pain and suffering. This was claimed as an element of damage in the complaint; and, if it was made necessary by the maltreatment of the surgeon first in charge, it can be recovered for, no matter how successful the final operation was, The contract implied by law from the mere employment of a surgeon is that he will treat the injury he is employed to treat with ordinary diligence and skill. This requires that he bring to its treatment such a degree of skill and diligence as surgeons practicing in the same general
In view of the line of argument pursued in the appellant’s brief, and the fact that the cause must be remanded for a new trial, it is well to say that the respondent did not, by its contract, undertake to effect a cure of the appellant’s injury, or restore his broken limb to its normal condition. It was in nowise responsible for the original injury, and it undertook only to bring to its treatment that ordinary diligence and skill which surgeons usually exercise in similar cases; and, if it did this, it is not responsible for the results. But, if it did not so treat it, it is responsible only for the injury its failure to do so entailed, not for the injury as a whole. Its liability is measured by its own dereliction of duty, not for everything the appellant may have lost or suffered because of the accident. It is well to say, also, that what we have said concerning the evidence is not to be taken as conclusive of the question discussed. What we mean is that the evidence presents questions upon which the appellant was entitled to the judgment of the jury whether or not he had suffered a damage at the hands of the respondent, not that his right of recovery is conclusively established.
The judgment is reversed and the cause remanded for a new trial.
BeaviSj O. J., and Dunbae, Mount and Andees, JJ., concur.