No. 7667 | Neb. | Dec 9, 1897
On July 4, 1890, Ernest Yan SMke, while playing baseball, fractured his kneecap. For negligently treating this wound he sued Drs. Potter & Reynolds in the district court of Seward county for damages. The trial resulted in a verdict and judgment in favor of the doctors, to reverse which the plaintiff below has filed here a petition in error.
1. The first assignment of error is that th.e verdict is not sustained by sufficient evidence. The undisputed facts in the case are that plaintiff’s kneecap was fractured at Cordova, Nebraska. One Dr. Doty was immediately called, dressed the wound, and put the plaintiff’s leg in a temporary splint; and he was then taken to Beaver Crossing, which appears to have been his home. That night Dr. Greedy was called to treat the plaintiff’s wound. He applied adhesive plasters to the knee, put it in roller bandages and a fracture box, and continued to visit and treat the plaintiff. On July 7 the defendants, with Dr. Greedy and at Ms request, called to see the plaintiff, and made an examination of the plaintiff’s wound, and one of the defendants then expressed the opinion that a necessary, or at least a proper, method of treating the plaintiff’s wound would be to make incisions in the skin and flesh of the knee and wire the two pieces of the fractured kneecap together with silver wire. On July 10 the defendants, in company with Dr. Greedy and a man named Evans, visited the plaintiff and performed an operation upon his knee. They subjected the plaintiff to the influence of chloroform, made incisions in the skin and flesh covering the kneecap, exposed the same, drilled holes in the two fractured parts thereof, and wired them together with a silver wire. While one of the defendants was drilling a hole in one of the pieces of the kneecap, a movement of the plaintiff’s leg occurred, causing the drill to break, leaving the point thereof in the bone. The broken point of this
Under the assignment that the verdict is not sustained by sufficient evidence a specific argument of the plaintiff is that, in consideration of a certain reward promised the defendants, they undertook and promised not only to treat his fractured knee but to effect a perfect cure thereof, so that he should have as healthy a limb and as perfect use thereof as he had prior to the time the injury occurred. The evidence on the part of the plaintiff tends to sustain his contention. The defendants, however, deny that they entered into any contract with the plaintiff in and by which they guarantied to cure him, and the evidence on their behalf tends to support their theory. We cannot say that the jury’s finding that the defendants did not undertake or agree to effect a permanent and complete cure of the plaintiff is unsupported by the evidence.
Another special argument of the plaintiff, under the assignment being considered, is that the defendants undertook and promised the plaintiff after performing the operation upon his knee on July 10 to continue to visit him and treat him until he should recover. The evidence on behalf of the plaintiff tends to sustain this contention. The defendants, however, deny that they made such an agreement, and allege that 'they made no agreement Avhatever with the plaintiff as to how often or how
As a part of the assignment under consideration, a third ■ special argument of the plaintiff is that the defendants were guilty of negligence in adopting and pursuing the method of wiring the plaintiff’s fractured kneecap together with silver wire; and the finding of the jury that the defendants were not guilty of negligence in adopting and pursuing the method they did lacks evidence to support it. On behalf of the plaintiff numerous physicians and surgeons testified as experts that the method adopted and pursued by the defendants in setting the plaintiff’s kneecap — that is, by wiring the fractured portions together — was not the proper method. On the other hand, the defendants themselves and the physicians and surgeons called as experts in their behalf testified that the method adopted and pursued by the defendants in treating the plaintiff’s kneecap was a proper and safe one. In other words, as is usual,.the experts for the plaintiff agreed with his contention and the experts on behalf of the defendants agreed with their contention. Whether the method adopted and pursued by the defendants was the proper one was a question of fact for the jury, and they, upon conflicting evidence, have acquitted the defendants of negligence in adopting and pursuing the method they did, and we cannot say that they reached the wrong conclusion.
A final special argument, under the assignment that the verdict is not sustained by sufficient evidence, is that the defendants were guilty of negligence in not advising the plaintiff of the fact that the drill had been broken and the point left in the bone of his kneecap. This, like the other questions discussed, was a question of fact for the jury. When the defendants found themselves confronted wth the emergency it was a question of professional judgment whether the plaintiff should be advised of the presence of this drill point in his kneecap. It was undoubtedly the honest opinion of the defendants that the plaintiff would receive no harm from the presence of this drill point in his kneecap, and they may have been of opinion that his ignorance of the presence of the drill point could do him no harm while if he knew the fact his anxiety upon the subject might work him an injury.
2.. A second assignment of error is that, on the trial below, the defendants were permitted to prove that they were discharged by the plaintiff from further attendance upon him without such discharge being specially pleaded. After a careful perusal of the entire record we have failed to find that any such an issue as a discharge was presented to the district court or that the defendants were permitted to prove a discharge by the plaintiff. The plaintiff alleged in his petition that he had employed the defendants to treat him until his injury was healed. This allegation the defendants met with a general denial. On the trial the plaintiff introduced evidence which tended to support the allegation of his petition, and the defendants were permitted to deny this and to state at what times they visited the plaintiff, and the last time they visited him, to-wit, August 1, and that they then told the plaintiff that they should not return again unless he or I)r. Greedy, his attending physician, should so request them, and that
3. A third assignment of error relates to the refusal of the district court to permit persons called as jurors to answer on their voir dire examination certain questions. The plaintiff’s counsel propounded to such persons the following questions: “Do you belong to any religious society? Do you belong to any secret society?” Counsel for the defendants objected to these questions and the court sustained the objections, and it is now insisted that in so doing the court committed an error. To sustain their contention counsel cite us to the following authorities:
Donovan v. People, 28 N. E. Rep. [Ill.] 964. In that case the trial judge refused to permit the counsel for the defendant to subject the persons called as jurors to any examination whatever, saying: “Except you examine the jurors for cause through the mouth of the court you cannot examine them at all.” The case cited is not in point.
Another case is Lavin v. People, 69 Ill. 303" court="Ill." date_filed="1873-09-15" href="https://app.midpage.ai/document/lavin-v-people-6956861?utm_source=webapp" opinion_id="6956861">69 Ill. 303. Counsel for the defendant in that case asked the persons called as jurors on their voir dire whether they were members of a temperance society or connected with any society or league organized for the purpose of carrying on prosecutions under the temperance laws of the state. The defendant was about to be put on trial under an indictment charging him with selling intoxicating liquors contrary to the statutes of the state, and the supreme court held, and we think properly, that the district court erred in refusing to permit the question asked to be answered.
Another case cited is Pearcy v. Michigan Mutual Life Ins. Co., 12 N. E. Rep. [Ind.] 98. This was a suit upon a life insurance policy, and one of the persons called as a juror was asked on his voir dire whether he held ,a policy issued by the defendant company, and answered “No.”
Another case cited is People v. Wheeler, 55 N. W. Rep. [Mich.] 371. In this case the people prosecuted Wheeler for keeping a saloon open on Sunday, and a juror testified on his voir dire that he had always been “down on liquor selling,” and that when sitting as a juror in a case where a liquor seller Avas interested as a defendant or a witness he had a prejudice against such person. Wheeler then challenged this juror for cause. The trial court overruled the challenge and the supreme court reversed the judgment for that reason.
We are unable to see that these cases are authority for the contention of the plaintiff here. In this case Avas involved, neither directly nor indirectly, any religious or secret society, and Ave are unable to understand what useful or just purpose of the plaintiff could have been subserved by permitting the jurors to state whether or not they Avere members of a church organization or a secret society. It is true that a litigant has the right to examine a person called as a juror for the purpose of ascertaining whether or not there exists grounds for challenging such person for cause. But what questions may be asked such a person, or Avhat range or scope such an examination may take, is a matter committed to the sound discretion of the trial judge. No rule can be laid doAvn that Avould be a safe guide in all cases; and the scope of such an examination, and the pertinency of the questions propounded, are to be determined from the nature of the case on trial. (Basye v. State, 45 Neb. 261" court="Neb." date_filed="1895-06-18" href="https://app.midpage.ai/document/basye-v-state-6649932?utm_source=webapp" opinion_id="6649932">45 Neb. 261.) We must not be understood as holding that in no case is it proper to ask a juror on his voir dire whether he belongs to a church organization or a secret society. All we decide here is that the district court did not abuse its discretion in this case in refusing to permit the per
4. Another assignment of error argued relates to the action of the district court in overruling a challenge for cause submitted by the plaintiff to one Fuller who was called and examined as a juror, the contention of the plaintiff being that Fuller’s examination disclosed that he was biased or prejudiced in favor of the defendants. Fuller stated that he was a married man having a wife a,nd one child; that he was then, and had been for ten years, residing on a farm in Seward county; that he was acquainted with the defendants, but not with the plaintiff; that he was not present at the former trial of this case; that he had heard something about the case from parties who were present at the former trial; that these parties pretended to relate the facts to some extent; that from what he had heard he had not formed or expressed any opinion as to the merits of the case; that the facts related-to him made no impression upon his mind, and would not influence his verdict in the present trial; that one of the defendants had been his family physician before ■ his, Fuller’s, marriage. The other had been his physician since he was married, but neither of the defendants was his physician at this time. He "was then asked by plaintiff’s counsel this question:
Would the fact that Dr. Reynolds has been your family physician, and Dr. Potter since you were married, have any effect upon you, if you sit as a juror in this case?
A. It might.
Q. If, after you had all the evidence, the fact of your acquaintanceship with them might be overcome by the same, might it not?
A. It might; yes.
The plaintiff’s counsel then challenged the juror for cause. The challenge was resisted by the defendants and their counsel propounded to him the folio-wing questions :
*40 Q. Notwithstanding this statement that you have heard, you have formed or expressed no opinion?
A. I have expressed no opinion.
Q. Formed no opinion?
A. I don’t think I have formed any opinion.
Q. Have you any opinion now as to the rights of the parties?
A. No; I have not.
Q. Have you any bias or prejudice for or against either of the parties?
A. No; I have not.
Q. Notwithstanding your acquaintance with the defendants in this action, can you render a fair and impartial verdict upon the evidence (the testimony) of the court?
A. I believe I could.
Q. And the fact that you are acquainted with Drs. Reynolds & Potter and that you have employed them in your family, would not interfere with your rendering a fair and impartial verdict on the evidence, would it?
A. Well, I don’t hardly believe it would. I believe I said once that it might, but I don’t believe it would.
At this point the court took the juror in hand and the following occurred:
Q. You say they are your family physicians at this time?
A. They are not.
Q. How long since either of them was employed by you?
A. About eighteen months.
Q. Have they or either of them been employed frequently by you in your family?
A. Up to that time all the medical assistance we needed.
Q. .Your relations were very friendly with them?
A. Yes, sir.
Q. Well, now, what do you say? Would the fact that they have been your family physicians, — would that fact*41 of your relations with them, — have any influence on your verdict in this case?
A. I believe not.
And thereupon the court overruled the challenge. We do not think the examination of this juror disclosed that he was biased or prejudiced either against the plaintiff or in favor of the defendants, and therefore we think the court did not err in overruling the challenge.
5. On the trial the plaintiff offered in evidence extracts from certain standard text-bdoks on surgery. These offers of evidence the district court excluded, and this ruling is the next assignment of error argued. These text-books were offered “for the purpose of showing the practice of reducing fractures of the patella,— simple transverse fractures,” — “and for the purpose of showing that the authors of the books offered in evidence condemn the practice of wiring, and that it should never be resorted to except in cases where the chances of life are equal to that of death, that it is dangerous, and that the results following in the greater portion, and in far more than a' majority of the cases, have proved fatally, and of very bad results.” It is to be noted that these text-books were offered for the purpose of showing that in the opinion of their authors the wiring of a fractured kneecap was not good surgery. They were not offered for the purpose of fortifying an opinion which had been expressed by an expert upon the witness stand and whose opinion was predicated upon the text-books offered, nor were they offered for the purpose of showing that they contradicted the opinion expressed by such expert. But they were offered as independent evidence to sustain the plaintiff’s contention that the wiring of the fractured kneecap» by the defendants was' not good surgery and therefore negligence. Was this evidence competent? We think that the great weight of authority, both English and American, is to the effect that text-books on surgery, though standard authority, are not competent, independent evidence.
6. A final assignment of error argued relates to the
Affirmed.