Lorenz v. Jackson — 34 N.Y.S. 652

Majority

p. 652

LORENZ v. JACKSON.

(Supreme Court, General Term, Fourth Department.

July 5, 1895.)

Headnote

Appeal—Review—Weight oe Evidence.

A verdict rendered on conflicting evidence will not be disturbed on appeal unless it is against the clear weight of the evidence.

Appeal from circuit court, Oneida county.

Action by Anton J. Lorenz, by his guardian ad litem, against Homer T. Jackson and another, for malpractice. "From, a judgment entered on a verdict in favor of plaintiff for $3,000, and from an order denying a motion for a new trial made on the minutes, defendant Jackson appeals.

Affirmed.

Plaintiff, while at work upon the railroad on the 17th of April, 1893, was engaged in removing ties, and a nail was found projecting from one of them, and a hammer was placed upon it, and another hammer delivered a blow to that one, and caused a piece of steel to enter the plaintiff’s left leg above the knee; the steel passing through two pairs of pants. Blood began to flow, and his father in company with others "helped him to a hand car and he was removed about a mile, to his home, and then walked some 442 feet from the hand car to his house. The injury was bathed by his mother, with water, and shortly thereafter Dr. Jackson, the appellant, who had been to some extent the family physician, was sent for, and he on arriving examined the wound and was unable to discover the piece of steel that is supposed to have entered the limb of the plaintiff, and he immediately announced that the wound was of a serious- nature and character, and that he did not regard himself as sufficiently experienced in surgery to properly treat the case, and advised the father and family of the plaintiff (the plaintiff then being some 17 years of age) to call in the services of a more experienced and skilled surgeon. The conference resulted in sending for Dr. Bailey, who arrived at the house of the plaintiff about 5 o’clock in the afternoon, and began to take measures to examine the injuries received by the plaintiff, and he was joined by the appellant, Dr. Jackson, and they remained together in the treatment that was administered to the plaintiff. He was removed from his bed onto a table, and ether was administered to him by the appellant, Dr. Jackson, while Dr. Bailey probed for the piece of steel, widening the wound in the limb, and thereafter applied bandages, and the appellant remained with the plaintiff during the night, administering to him hypodermic injections of morphine and atropia. The treatment continued for several days, until, about the eighth day after the injuries were received, it was found that dry gangrene ensued, and Dr. Glass was called to attend the patient, and-finally it was determined that the

p. 653

limb must be amputated, which was done on the 25th day of April, 1893. "Voluminous evidence was taken at the circuit in respect to all the questions of fact that arose in respect to the treatment received by the plaintiff at the hands of Dr. Bailey and Dr. Jackson.

Argued before HARDIN, P. J., and MARTIN and MERWIN, JJ.

Tuttle & Ransom, for appellant.

Sayles, Searle & Sayles, for respondent.

A careful examination has been made of the several exceptions taken upon the trial without discovering any prejudicial error presented by them. At the close of the evidence no motion for a nonsuit was made. The case was submitted to the jury on the general principles of law applicable to actions of malpractice, in an elaborate charge, to which no exception was taken. In Shear. & R. Neg. § 435, it is said: “If the practitioner, however, frankly informs a patient of his want of skill, or the patient is in some other way fully aware of it, the latter cannot complain of the lack of that which he knew did not exist.” The substance of the doctrine stated in the quotation just made was apparently approved in Small v. Howard, 128 Mass. 131 . See Link v. Sheldon, 64 Hun, 632 , 18 N. Y. Supp. 815 , affirmed 136 N. Y. 1 , 32 N. E. 696 . During the charge, the trial judge recognized the rule stated in the citations just made, and carefully instructed the jury in respect thereto, and afforded the jury an opportunity to relieve the appellant from liability by the application of the rule, if, in the judgment of the jury, the facts and circumstances disclosed by the evidence warranted its application. It must be assumed that the verdict of the jury in regard to the branch of the case referred to in the rule of law just mentioned was found adversely to the appellant. After weighing the evidence found in the appeal book, although very conflicting, we are constrained to adopt the rule in respect to the verdict that was stated in Graves v. Santway, (Sup.) 6 N. Y. Supp. 892 , affirmed 127 N. Y. 677 , 28 N. E. 256 . It was there said, in effect, that it is the duty of this court to accept a verdict rendered upon conflicting evidence “unless it is against the clear weight of the evidence” Having found no legal errors committed during the progress of the trial, we are constrained to sustain the verdict of the jury.

Judgment and order affirmed, with costs. All concur.

Cases cited

Link v. Sheldon 136 N. Y. 1 N.Y. 1892-11-29 at 32 p. 653