31 Mo. 375 | Mo. | 1861
delivered the opinion of the court.
We can not perceive the ■ relevancy of the evidence offered by the defendant as to the “ weakness of the bones of the plaintiff’s family.” No such inquiry could properly arise upon the pleadings or any issue in the cause. The petition alleges unskilfulness in the treatment of the broken limb, and this allegation is traversed by the answer. If any hereditary peculiarity of that kind could have availed as a defence at all, it should have been set up in the answer. There was no offer to prove any inherent defect in the bones of the plaintiff himself, or that the deformity of the leg resulted from any such thing, or that the treatment was rendered more difficult on that account, nor was any thing of the kind relied on in the answer.
Whether errors of judgment will or will not make a surgeon liable in a given case depends not merely upon the fact that he may be ordinarily skilful as such, but whether he has treated the case skilfully or has exercised in its treatment such reasonable skill and diligence as is ordinarily exercised in his profession. For there may be responsibility where there is no neglect, if the error of judgment be so gross as
The defendant’s fourth instruction assumed the non-liability of the defendant if the injury complained of was occasioned in whole or in part by any act of the plaintiff, or any failure on his part to submit to and observe the directions of the defendant relating to his treatment and cure, although the surgeon may have set the plaintiff’s thigh unskilfully.
The general principle that a party seeking legal redress must not only show his adversary to be in the wrong, but also that he himself is without fault, is subject to modification when there is mutuality in it, and both parties have contributed to produce the inj\iry„ and the instruction, we think, was erroneous. The rule in such cases seems to be, that if the plaintiff substantially contributed to the injury by his improper or negligent conduct, he can not recover; but if the injury was occasioned by the improper or negligent conduct of the defendant and the plaintiff did not substantially contribute to produce it, then the latter would be entitled to the verdict. (Sills v. Brown, 9 Carr & P. 601; 16 Conn, 428.)
The sixth and seventh instructions confined the attention of the jury to the single act of setting the bone, and excluded from their consideration all evidence relating to the subsequent treatment of the case by the surgeon. The general treatment of the case by the defendant during the time he was attending the patient was evidently the matter for consideration, and not merely the adjustment of the bones in the first instance. He was, as the evidence shows, attending the defendant for several weeks, and in the course of the treatment the leg became crooked; whether it was caused by unskilfulness or inattention on the part of the surgeon,
In reference to the question propounded to Dr. Trevor, although in more general terms than is usually admissible in eliciting the opinion of experts, we think the answer given could not have prejudiced the defendant, as it expressed no unfavorable opinion as to the treatment of the case, nor as to the cause of the injury or deformity.
Judgment affirmed;
