Plаintiff, who is a surgeon, sued defendant on his promise to pay for professional services rendered tо one Murray, who had been injured by a blast, so that both legs were badly crushed below the knee. Plaintiff was cаlled in as counsel to aid the attending surgeon Dr. Harding, shortly after the accident at Sault St. Marie. The left leg was amputated, and they were both of opinion that amputation of the other was expediеnt, by reason of the extensive comminuted fracture of the bones and laceration involving injury to an artery, to prevent extreme danger of death. The opposition of Murray to this prevented the amputation and the limb was ultimately saved but not entirely restored to its original condition.
The only mеdical testimony in the case was given by plaintiff and Dr. Harding. Dr. Jessop was not sworn.
The employment by defendant seems to have been shown, •and the questions on which the controversy appears to have ¡turnеd were the value of the services and the propriety of the treatment.
It is to be observed that thеre is no conflict of testimony whatever in regard to the fact of the work and attendance ■of рlaintiff, and no testimony which did not leave a consider•able sum due him if those services were propеrly rendered.
The court in charging the jury told them in substance that they were at liberty, if not satisfied with the testimony ■of thе experts, to use their own judgment on the question of value. They were also instructed that if plaintiff’s coursе was unskillful, they might reduce the fees accordingly, as in •their judgment should be deemed proper. They gave plaintiff nothing.
There can be no presumption of law concerning the value ■of a surgeon’s services, and there is no presumption that a jury can ascertain it without testimony of some kind, from persons knowing something about such value. As already ■suggested there was positive testimony of value not discredited, and, in the case of Dr. Harding, given by a disinterested witness called for important purposes by the defendant himself. Wе can see no sufficient reason for the suggestion that all of this testimony might be disregarded, and there is no rule which would allow the jury to entirely ignore the testimony, and at the same time to form an independent conclusion without testimony upon a matter which required proof beyond their conjectures or their opinions. We do not say that the value of a physican’s services at a ■given time and place may nоt be known to other persons than physicians, if they have been in a position to learn the customary or proper rates. But there is no legal presump
Neither was there any evidence which would justify the jury in reducing the otherwise appropriаte compensation on the ground that plaintiff’s treatment was improper. There was no such evidеnce.
The fact that the injured limbs were slow in healing and imperfectly healed at last does not neсessarily show that the treatment.was improper. The injuries as described were of a very aggravatеd nature, and beyond any ordinary fracture, the limbs being bruised and badly lacerated, the bonesci’ushed and an artery tom. JBoth medical witnesses were of opinion that there was danger in leaving the right leg on.Therе is nothing to show that the course taken under plaintiff’s oversight was not the proper one, and nothing to shоw that when he left the case in the hands of the regular surgeon and nurse, anything necessary had been omitted or anything done out of the way. On the contrary, not only ■ the plaintiff but Dr. Harding gave positive testimony the othеr way. There is nothing to show that plaintiff did not possess and use competent skill. The fact that some time later Dr. Jessop made some change in the management of the remaining limb has no tendency to show thаt the previous treatment was not proper at the time, and no one testifies it was not. Dr. Harding’s testimony indiсates entire harmony of views, and Dr. Jessop is not produced to contradict him. No other medical testimony is offered to show any failure of skill or any mistake in the treatment.
Where all the testimony in the cаse is in favor of the treatment pursued, and the question is one of medical skill which can only be tested by those familiar with such matters, it was error to let the jury draw adverse conclusions, which could only be based on their unprofessional notions, of how such injuries should be treated. The fact that Murray survived is not evidence that his case was not desperate in appearance or in fact, and the fact that his limb is not restored to perfect soundness is no. proof that he has
The judgment must be reversed with costs and a new trial granted.