131 P. 888 | Cal. Ct. App. | 1913
This action was one to recover on account of personal injuries occasioned by reason of alleged negligence on defendant's part. The complaint alleges plaintiff's entrance as a patient in defendant's hospital; that while in said hospital and unconscious, a servant of defendant placed hot-water bags on or about plaintiff's feet in such a careless and negligent manner that plaintiff's feet were badly burned and scalded, from which he suffered damages. The answer admits the allegations of the complaint, other than the averment of negligence, the extent of the injuries claimed, and the expenditure the basis of special damages. The case was heard by a jury and resulted in a verdict for defendant and judgment accordingly, from which judgment, and an order denying a new trial, plaintiff appeals.
The errors assigned by appellant are numerous; the principal one, and the error which, to our minds, is most prominent, arises from the action of the court in giving the following instructions:
"XX. Plaintiff has confined his allegations of negligence and carelessness to the manner of the placing of the hot-water bag on or about plaintiff's feet, and in order to find for the plaintiff, it must have been shown to you by a preponderance of the evidence in this case: First, that the hot-water bottle was placed on or about plaintiff's feet in a careless and negligent manner; and, second, that the burns resulted from, and *361 were the direct and proximate result of the manner of the placing of the hot-water bag or bottle."
"XXI. Plaintiff, in his complaint, has not charged that any employee of the defendant was negligent or careless in placing at his feet a hot-water bag that was too hot or that would cause burns by reason of being too hot. The allegations of the complaint on which plaintiff must recover, if at all, being that the employees of defendant were negligent and careless in the manner of placing of the hot-water bag on or about plaintiff's feet. If, therefore, you find from the evidence in this case that the hot-water bottle in question was not placed at plaintiff's feet in a careless or negligent manner, you must find for the defendant and render a verdict in favor of the defendant in this case."
The court gave the further instruction: "The fact that plaintiff's feet were burned, is not a fact or circumstance to be taken into consideration by you in determining the question of whether or not Miss Melone was guilty of negligence in applying the hot-water bottle to plaintiff's feet. The burning of plaintiff's feet was a subsequent event. In other words, you are to determine the question of whether or not she was negligent, by the circumstances as they existed at the time she applied the hot-water bottle, and not by what afterward happened."
These and other instructions tending in the same direction could have had no other effect than to have instructed the jury that when the nurse applied the hot-water bottle to the feet of plaintiff, exercising ordinary care in the manner in which the same was placed, she was absolved from all further care or attention in relation to the patient as regards the effect produced by the application of the hot-water bottle. We are of the opinion that the court gave too restricted a construction of the averments of the complaint. The word "manner," in the connection under consideration, means the way of doing anything. The use of the term "manner" in the complaint should be taken to comprehend the way the act was performed, having in view the condition of the patient and the character of the remedies applied. To place a hot-water bottle of such high temperature upon the feet of an unconscious man as would burn or scald the feet cannot be said to be a proper way of doing such a thing; and a pleading *362
which refers to the manner as having produced the injury should, under section
As we have before said, there are numerous specifications of error, but it is unnecessary, in our opinion, to notice the remainder, for the reason that upon a new trial it is not to be *363 apprehended that the same questions will again be presented.
Judgment and order are reversed.
James, J., and Shaw, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on April 29, 1913.