Birmingham Infirmary v. Coe

• Decision Date: 20 October 1921
• Docket Number: 6 Div. 264.
• Parties: BIRMINGHAM INFIRMARY v. COE.
• Court: Alabama Supreme Court

91 So. 604

206 Ala. 687

BIRMINGHAM INFIRMARY v. COE.

6 Div. 264.

Supreme Court of Alabama

October 20, 1921

Rehearing Denied Nov. 24, 1921.

Appeal from Circuit Court, Jefferson County; Dan A. Greene, Judge.

Action by Edward Coe against the Birmingham Infirmary for damages for personal injuries while being treated. Judgment for the plaintiff, and defendant appeals. Affirmed.

Percy Benners & Burr, Coleman, Coleman, Spain & Fish, and R. H Scrivner, all of Birmingham, for appellant.

Longshore Koenig & Longshore, of Columbiana, and W. A. Denson, of Birmingham, for appellee.

SOMERVILLE J.

Appellant interprets that portion of the oral charge to which exception was taken as an unequivocal instruction to the jury that the mere act of placing the hot water bottle in plaintiff's bed, whatever its temperature, whether 110 or 210 degrees, was under the circumstances an act of negligence. The language of the charge is, indeed, somewhat involved, and may possibly have been understood by the jury in the sense suggested by appellant. But it is also clearly susceptible of the meaning that the temperature of the water made no difference, whether it was 110 or 210 degrees, if in fact it burned the plaintiff, and if its placing in the bed at such a temperature was an act of negligence. Reading the quoted language in connection with its context, and in the light of other pertinent portions of the oral charge, we think the latter interpretation is the more natural and reasonable of the two, and more probably expresses the meaning intended; the stress being laid on the negligent contact and the actual burning that resulted.

In requesting the instruction that placing the bottle in the bed at a temperature of 110~ Fahrenheit was not negligence, if properly protected, defendant's counsel no doubt had in mind the ambiguity of the quoted portion of the oral charge and intended to make it clear. Undoubtedly, the mere fact of placing such a bottle in the bed, being usual and proper, was not in itself negligence. But either it should have been so covered as to prevent burning in case of contact with the patient, or it should have been so placed, or the patient so watched and guarded, as to avoid any contact of sufficient duration to burn and injure. The refused instruction recognized the first alternative, but ignored the latter, which was the more obviously important, under the inferences deducible from the evidence. As...