90 Mo. 487 | Mo. | 1886
On Monday, the sixteenth day of October, 1881, plaintiff fell from a wagon loaded with barrels of .apples, one of which rolled on him, ‘ and dislocated his left hip. He was at the time several miles from home, and was carried to a neighbor’s house, and Dr. Davis called in‘to see him. Dr. Davis testified that he then “reduced,” or set the bone “by manipulation.” Whether this is so or not, on the Wednesday following, plaintiff was placed upon a bed and transferred by wagon over rough and frozen roads to his own house. Some time afterwards plaintiff called in Dr. Culver, a neighboring physician, who examined the left hip and
The first exception urged upon us is the refusal of the court to give, at the close of the evidence in plaintiff’s behalf, an instruction in the nature of a demurrer-to the evidence, which was asked upon the ground that “the contract as plead is an entirety, and is an absolute contract to czwe.” If this is so, the undertaking is a special one, and more comprehensive than the law imposes on the surgeon. Under the law his contract is not
The instruction was again asked at the close of all the evidence, and the claim made that the evidence-shows, withoift any conflict therein, a fulfillment on the-part of defendant of the contract made and entered into with plaintiff. This exception we will now consider and dispose of in this connection. There is little, if any variance, we may observe, in the circumstances and. terms of the employment of defendant, as the same is-given in the evidence of Press Yanhooser, who testified for plaintiff, and that of Dr. Davis and Dr. Berghoff, examined on the part of defendant. Press Yanhooser, who acted for plaintiff, says, as to this, “I came to St. Joseph with Dr. Davis and went to Dr. Berghoff’s office. I asked him what he would take to come out and put the bone in place ? He said as it was Dr. Davis’ case he-would come out and set it for forty dollars. I told him I would give him that * * * . I only hired him to-set the bone, to put it in place. No, I didn’t employ
When defendant called on plaintiff, which he did on November 16, the second day after his said employment on November 14, after learning from plaintiff the history of the accident, which had also been previously given him by Dr. Davis, he placed plaintiff on the floor after administering chloroform, tried to set the bone by manipulation, but failed to set it by this means just as Dr. Grough had failed in his said endeavors so to do. He then employed pulleys and the Jarvis adjuster, which were the proper mechanical means, and after some three hours work succeeded, with the assistance of Dr. Davis, as both doctors testified, in reducing the dislocation. The bone, however, did not move back into
About ten days afterwards defendant returned for his fourth visit, and with Dr. Davis again put the left hip bone in place, as they testified, and then left. After this nothing was ever done by plaintiff, who never again notified or sent for defendant, or employed any other ■doctor, but as he testified, just let it go, with the result already indicated, the right hip being sound in all respects and the left one being firmly fixed in its malposition.
This evidence, it must be confessed, presents the case ■very favorably for the defendant, and is, to say the least ■of it, of great force and weight. We may observe that we have not been favored with any additional abstract or brief, or with any oral argument in behalf of the respondent, but the evidence in the record, which we sup-, pose is relied on as of a contrary tendency, is in
The testimony of plaintiff and his wife and attendants tends to show that the directions given by defendant were followed, and that the plaintiff remained quiet in bed, and that when unbandaged his left hip was found in the same condition and still out of place. One or more of these described the left leg before- defendant came to treat it, “as turned in somehow,” and says that after defendant left it remained “very much the same.” These features in the evidence, taken altogether, tend, we think, somewhat to show that the bone had never been set or put in place; that it might have been so set by the .exercise of reasonable skill and diligence, and
But the authority already quoted further says: “ Sometimes, however, after the reduction, the bone has a tendency to redislocation, and will not remain in place without support.” There was, manifestly, such a tendency to redislocation in this case, and recognizing this, defendant, when he re-set the leg, tied the legs of plaintiff together, and wrapped up a small stick of stove wood in a blanket and placed the same under or against the left hip, which was intended, perhaps, to act to some extent as the splint would, and in lieu thereof.. A further circumstance shown by the evidence is, that after defendant had re-set the left leg, at the time of his last visit, some of those attending plaintiff discovered, im
But there were a number of other exceptions taken upon the trial, and among them the following : Plaintiff was permitted to show the skill, reputation and standing of Dr. Grough, as a surgeon and physician, by the testimony of the medical experts, who were then asked, and permitted to give, their said opinions upon the material issues, on the assumption that his diagnosis of the case was correct. After this proof was admitted in plaintiff ’ s behalf, the defendant, in his turn, offered to show, by the same experts and witnesses, his own skillfulness and reputation in that behalf, which 'evidence so offered was, on objection of plaintiff, excluded. It will be perceived and remembered that the petition charged defendant, both with a want of skill and with negligence in the treatment of the case. The possession or want of skill by defendant was thus made a material issue,, and plaintiff was not limited, either in his pleadings or by the instructions in the cause, to the issue of negligence. The possession of the required skill by defendant, if he did not apply or use it in the case, would,
The experts whose testimony was offered in this behalf were, we may remark, personally acquainted with defendant, and some of them, at least, had been associated with him in practice in similar cases, and it was, we think, and
As already said, the issue as to the skillfulness of defendant was submitted, with the other issue as to negligence, in the instructions given in the cause, but ■competent evidence in that behalf was, we think, under the said ruling, excluded, and this, we think, was error, and we so hold. Exceptions were also taken to the court’s action and ruling upon the instructions, and one of these, we think, is well taken. The fifth given in plaintiff’s behalf, seems to put the burden of proof upon defendant to show to the satisfaction of the jury that he possessed and used the knowledge, skill and ability that was reasonably necessary to properly treat plaintiff. ' If it is open or subject to this construction, as we think it is, it is out of harmony with other instructions given in the cause and is manifestly erroneous.
As the cause goes back for re-hearing, we deem it proper to add that instructions numbered four and seven, given at defendant’s instance, unnecessarily and improperly'include'the treatment of plaintiff’s right hip by defendant, as to which there is no issue or claim made for damages.