Carey v. Mercer
Citation | 239 Mass. 599,132 N.E. 353 |
Parties | CAREY v. MERCER. |
Decision Date | 14 October 1921 |
Court | United States State Supreme Judicial Court of Massachusetts |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Berkshire County; Nelson P. Brown, Judge.
Action by James P. Carey against William J. Mercer. Judgment for plaintiff, and defendant brings exceptions. Exceptions sustained.J. Arthur Baker, of Pittsfield, and Herbert C. Joyner, of Great Barrington, for plaintiff.
Walter F. Hawkins, of Pittsfield, for defendant
The plaintiff suffered a ‘fracture of the bone of the upper tibia at the knee joint.’ The defendant, a physician, was called to attend him, and, it is alleged, failed to treat the patient with proper care and skill. The jury found for the plaintiff.
The evidence was conflicting on the question of the defendant's negligence. The plaintiff's evidence tended to show, ‘among other acts of negligence,’ that the defendant was negligent in failing to have an X-ray photograph of the plaintiff's leg taken, which photograph, it was claimed, would have disclosed a fracture at the knee joint. There was evidence that the defendant advised the plaintiff to have the photograph taken, but that he declined because of the expense connected therewith. The plaintiff offered evidence that no such suggestion or advice was given and that he never declined to have such photograph taken on account of the expense, or for any other reason.
The defendant requested the court to rule:
‘If the jury find that the X-ray photograph was required to determine whether any bone of the plaintiff's leg was broken, and [he] was so informed by the defendant and declined to have such photograph taken, then the defendant is not responsible for not discovering the broken bone.’
This request was refused. The jury were instructed:
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