Baute v. Haynes

• Decision Date: 26 September 1907
• Citation: 104 S.W. 272
• Parties: BAUTE v. HAYNES.
• Court: Kentucky Court of Appeals

104 S.W. 272

BAUTE v. HAYNES.

Court of Appeals of Kentucky.

September 26, 1907

Appeal from Circuit Court, Pulaski County.

"Not to be officially reported."

Action by Maggie Haynes, by next friend, against J. A. Baute. Judgment for plaintiff and defendant appeals. Affirmed.

Virgie P. Smith and O. H. Waddle & Son, for appellant.

Thos Z. Morrow and J. W. Colyor, for appellee.

NUNN J.

This action was instituted by the next friend of Maggie Haynes, an infant nine years of age, for the recovery of appellant, a physician and surgeon located in the city of Somerset, Ky $5,000, which she avers that she is entitled to on account of the carelessness and negligence on the part of appellant after he had accepted general employment in setting and bandaging her broken arm, and his failure to render to her broken arm, after the first treatment, any further surgical or medical service, and that by reason of his negligence carelessness, and failure it became necessary for her arm to be amputated. Appellant admits that he was employed to and did make one trip and set and bandaged the arm alleged to have been broken, but avers that one trip was the extent of his employment, and that he was not, and it was not so understood that he was, to generally treat the patient, and denied any carelessness, negligence, or failure on his part to render to plaintiff the necessary attention, but avers that he set and bandaged the broken arm in the usual and ordinary manner, as accepted by his profession to be the very best treatment. For further answer he pleaded contributory negligence on the part of appellee's father in refusing and failing to employ or request appellant to visit the patient after her arm was set, or to provide and give her the necessary and proper attention, as he was requested to do by appellant on his visit to appellee, and that he failed to provide sanitary measures and surroundings as were necessary and that her condition demanded. By the reply the affirmative allegations of the answer were traversed. Without going into the evidence in detail, it is sufficient to say that each of the parties produced upon the trial evidence to support the allegations made in their pleadings. The jury returned a verdict in behalf of appellee for $1,000.

Appellant contends that the judgment should be reversed, because the court refused to give a peremptory instruction to the jury in his behalf, and that the court erred in its instructions to the jury. Appellee's arm was broken on Sunday about noon and appellant treated it on Monday about noon. In the meantime, and while they were trying to obtain the service of a physician, appellee was lying on a bed, while continued applications of cloths saturated with cold spring water were being applied to the...