57 N.Y.S. 784 | N.Y. App. Div. | 1899
The appellant contends that this action is brought to recover damages because of the breach of an express contract whereby the defendant agreed to furnish her a skilled, competent and trained nurse. We see no reason to doubt the accuracy of this contention. Such an express contract is averred in the complaint, also its breach and damages resulting therefrom. The learned trial judge held that the action was exclusively in tort and that the contract alleged was material only in the sense in which the payment of fare is
The learned judge here applied by analogy the ordinary rule in .■actions against carriers. That rule, however, permits the injured passenger to maintain an action, either in contract or in tort at his ■election; that is, either what was formerly assumpsit for the breach ■of the contract, whether express or implied, or on the case for the wrong.
In the present case, the contract was express. It settled all questions of general duty attached by law, and became the criterion of
There was ample evidence of the express contract thus pleaded.. The testimony adduced by the plaintiff is most explicit on this head.It was to the effect that the defendant, through its undoubtedly authorized agent, agreed, for the consideration of twenty-one dollars - per week, to provide her with a skillful, trained and competent nurse. This contract was entirely reasonable, and was clearly within the scope of the authority of the sister who made it. The real question is as to the breach. The evidence on that head was, to-say the least, sufficient to carry the case to the jury. The person furnished (Miss Kinney) was not a trained nurse in the sense of' being a graduate. She was a mere pupil in the defendant’s training school. The course there was two years. Miss Kinney had studied in the school for but nine months. She was paid by the-defendant for the services which she rendered it, while receiving her tuition, seven dollars jDer month, together with her board, lodging and washing. For these same services the defendant, as we-have seen, charged the plaintiff at the rate of eighty-four dollars per-month. Shortly after the operation which was the occasion of the, plaintiff’s visit to the hospital, and while she was yet under the influence of ether, Miss Kinney applied an unprotected rubber bag, containing very hot water, to her leg, burning it severely and causing-serious injury. This was the plaintiff’s evidence. Upon the other hand, evidence was given by the defendant tending to show that. Miss Kinney had had experience in attending surgical cases, both, before and after she entered the defendant’s hospital, and had given satisfaction upon such occasions; also, that she had been instructed by a competent teacher (provided by the defendant) in the proper-use and placing of hot water bags, and that she had previously used
It follows that the judgment and order appealed from should be reversed and a new trial granted, with costs to the appellant to abide the event.
Van Brunt, P. J., Rumsey and Patterson, JJ., concurred.
Judgment and order reversed, new trial granted, costs to appellant to abide event.