Schnetzky v. Zanto

174 Wis. 160 | Wis. | 1921

Esci-iweiler, J.

Although Dr. Berwick testified directly that there was no pus in the discharge coming from Mrs. Zanto’s uterus some eleven days after the birth of the child and in which was found, as he claimed, an overlooked portion of the placenta, yet it is quite apparent from an inspection of the record that through a mistake which could easily arise in the trial of such a lawsuit the court and counsel on both sides seemed to have assumed that there was testimony which would warrant the including as an important feature of the hypothetical question asked of the medical witnesses the existence of pus in such discharge. Although at one stage of the case the court called attention to the fact that there was no evidence as to the nature of the pus, yet nowhere was there direct or. specific challenge made as to such element being improperly included in the hypothetical questions. While it is true that plaintiff’s counsel, in his objection as set forth in the statement of facts, supra, did not specify such feature as one of the grounds of his objection, neither was he requested by the opposing counsel or by the court to be more specific with his objections.

From the answers of some of the physicians it was evident that in their judgment the presence or absence of pus, or at least the question as to the variety of pus assumed to be present, were elements of considerable importance in determining the substantial question at issue between the parties, that is, whether the condition of high temperature and chills which Mrs. Zanto had from the fifth day after the delivery was naturally and directly attributable to the remaining of a portion of the placenta in the uterus as claimed by defendant, or to some other cause, as pneumonia, as asserted by plaintiff.

While from the medical standpoint the very general term "pus” may include innocuous as well as noxious varieties of exudations, yet to a body of laymen such as make up the jury, the term as it was used in the questions propounded to the medical experts, taken especially in connection with the testimony as to the strong odor, arising from the discharge, naturally conveys a strong impression that there was existing a substantial putrefaction of something within the uterus and presumably that which was described by Dr. Berwick as being a portion of the placenta and which defendant claimed had been overlooked by plaintiff in his examination of the afterbirth.

Although, so far as we can discover in the record, this feature of the trial was not called to the attention of the trial court, nevertheless it is suggested and discussed in appellant’s brief here. A consideration of the entire testimony satisfies us that this reiterated inclusion of and emphasis upon this element of pus as being present in the discharge must have influenced the jury in a substantial degree in arriving at the verdict which they rendered. We are also convinced that the error was of such a nature that it must be declared to have caused a substantial prejudicial error for which the plaintiff should be granted the relief of a new trial.

By the Court. — Judgment reversed, and cause remanded for a new trial.