78 A.D. 317 | N.Y. App. Div. | 1903
This action was brought to recover damages for the breach of an express contract. This was determined upon a former appeal to this court (39 App. Div. 624). The terms of the contract, according to the allegations of the complaint, are, in substance, that the defendant, for a specific consideration, agreed to furnish the services of a skilled and experienced nurse to the plaintiff while she was undergoing a surgical operation and recovering therefrom in defendant’s hospital. The breach alleged is defendant’s failure to assign such nurse ‘and that the one which it did assign, by reason of her inexperience and lack of skill, placed an unprotected rubber bag, filled with very hot water, against one of the plaintiff’s legs immediately after the operation and while she was under the influence of ether, and she was thereby severely burned and seriously injured. The fact that the plaintiff was burned and injured was not denied, but the existence of the contract and the breach of it were, and these were the principal issues presented at the trial, which resulted in a verdict for the plaintiff, upon which the judgment appealed from.was entered.
It seems unnecessary to set out at length the facts established at the trial, inasmuch as they are quite similar to those presented on a former trial and are stated quite fully on a previous appeal (65 App. Div. 64). It is sufficient to say that there was a sharp conflict in the testimony offered by the respective parties upon both of the issues involved. As to the existence of the contract, the plaintiff testified, in substance, and she was corroborated by her sister, Mrs. Howland, that when she went to the hospital she was informed by Sister Ignatius, one of the Sisters of Charity there in charge, that the price of an experienced trained nurse was three dollars per day; that they had eighteen young ladies in the hospital, and they ■ would provide her with the best, to which the plaintiff replied: “ That is satisfactory; that is all right; send me the best and do for me what you have agreed and promised to do, and then I will leave the selection of the nurse to you.” On the part of the defendant testimony was given to the effect that Sister Ignatius had no authority to make any arrangement with the plaintiff which was binding upon the defendant, or which would impose upon it a liability resulting from the selection of the nurse.
This brings us to a consideration of the second issue involved, viz., whether or not there 'was a breach of the contract — assuming one to have been made by the defendant — and here there was also a sharp conflict in the testimony offered by the parties. The testi
Hiss Kinney, the nurse, was also produced as a witness, and after
I am also of the opinion that the court erred in sustaining objections to two other questions put to this same witness. In this connection it appeared that the witness accompanied the plaintiff to the operating room and there remained with her while the operation was being performed. In the meantime another nurse prepared the bed in which the plaintiff was to be put after the operation had been performed, and put in it a hot water bag. When the witness returned with the plaintiff to this room she found the hot water bag in the bed and took it out and placed it upon the floor. This is the bag which she subsequently took from the floor, placed in the bed and which burned the plaintiff. After she had stated the foregoing facts she was asked: “ Q. About how long had the hot water bottle been on the floor * * * after you put it there, before you took it up to apply it to Hiss Ward?” This was objected to and the
There were other errors assigned to the rulings of the court which would require very serious examination if their consideration were necessary now to a determination of the appeal before us. Several of these relate to the refusal of the court to charge, in one form or another, that if, prior to the time the plaintiff was injured, the nurse assigned had shown herself to be ordinarily skillful and competent she was not proved to be either incompetent or lacking in skill by the single act which caused the plaintiff’s injury. This seems to be the settled rule (Baulec v. N. Y. & Harlem R. R. Co., 59 N. Y. 356), but it is, however, unnecessary to determine whether it is or not, inasmuch as it is not probable, upon a retrial, the question will again be raised.
The judgment and order appealed from must, therefore, be reversed and a new trial ordered, with costs to the appellant to abide the event.
Ingraham and Hatch, JJ., concurred; Van Brunt, P. J., con. curred in result.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.