Carlson v. Benton

• Decision Date: 19 November 1902
• Docket Number: 12,151
• Citation: 92 N.W. 600,66 Neb. 486
• Parties: FRANK A. CARLSON v. EUGENE A. BENTON ET AL
• Court: Nebraska Supreme Court

92 N.W. 600

66 Neb. 486

FRANK A. CARLSON v. EUGENE A. BENTON ET AL

No. 12,151

Supreme Court of Nebraska

November 19, 1902

ERROR from the district court for Merrick county. Action in the nature of case against defendants for alleged malpractice as physicians and surgeons. Tried below before GRIMISON, J Verdict and judgment for defendants. Plaintiff brings error. Reversed.

REVERSED AND REMANDED.

William T. Thompson and George W. Ayres, for plaintiff in error.

J. W Sparks and John Patterson, contra.

ALBERT C. DUFFIE and AMES, CC., concur.

OPINION

ALBERT, C.

It is alleged in the petition, among other things, that the plaintiff sustained a fracture of the bones of his leg below the knee and a dislocation of one of said bones, and that the defendants, at his instance and request, undertook, as physicians and surgeons, to treat and heal such injuries; that because of the negligence and lack of skill on the part of the defendants, the ends of the broken bones were not properly brought together, and the dislocation was not reduced; that by reason of such omission, the fractured bones failed to unite properly, leaving the plaintiff lame and causing him great bodily pain. The answer admits the fracture of the bones, as alleged in the petition, and that the defendants were employed as physicians and surgeons to reduce such fractures; all the other allegations of the petition are denied. The answer also charges contributory negligence. A trial resulted in a verdict for the defendants. Judgment accordingly. The plaintiff brings error.

On the trial the plaintiff offered in evidence an X-ray photograph of his injured leg, taken after his injuries had been treated by the defendants. It was objected to, on the ground that a sufficient foundation had not been laid. The objection was sustained, and the ruling of the court in that behalf is now assigned as error. The defendants insist that the ruling of the court was right, because the competency of the person taking the photograph, the condition of the apparatus with which it was taken, and that the circumstances under which it was taken, were such as to insure an accurate picture, had not been sufficiently shown in evidence. To show such matters is simply one way of establishing the accuracy of the picture. We do not understand that such way is exclusive. Before the photograph was last offered in evidence, the plaintiff had introduced evidence tending to prove all the material allegations of his petition. In addition, Doctor Arnold had testified, in effect, after showing his competency as an expert, that he had examined the injured leg by means of the X-ray, after it had been treated by the defendants and found the fracture and dislocation alleged in the petition. His testimony tended to show that neither the fracture nor the dislocation had been properly reduced. He further testified that the photograph offered in evidence was a true representation of the position, location and condition of the bones of the injured leg, as they were at the time he made the examination. The testimony of Doctors Robinson and Hunt is to the same effect, save that the former ascertained the position, location and condition of the bones by manipulation. The means employed by the latter to ascertain such facts do not appear. In view of this testimony we do not deem it necessary to go into the question of the competency of the person who took the photograph, the condition of the apparatus by means of which it was taken nor the circumstances under which it was taken. Such matters would be far less satisfactory evidence, to the ordinary mind, that the photograph was an accurate representation of what it was claimed to represent than would the testimony of witnesses who were competent to compare it with the original and who had thus compared it. The defendants cite Bruce v. Beall, 41 S.W. 445, in which the court says: "It is not to be understood, however, that every photograph offered as taken by the cathode or X-ray process would be admissible. Its competency, to be first determined by the trial judge, depends upon the science, skill, experience and intelligence of the party taking the picture and testifying with regard to it, and, lacking these important qualifications, it should not be admitted." The rule thus announced was applicable, doubtless, to the facts before the court in that case; but it is too narrow to be regarded as a general rule. The novelty of the X-ray photograph does not extend to the rules governing its reception in evidence. Maps, photographs, drawings and models are admissible in evidence when it is shown that they fairly represent the object or objects under investigation. There is no good reason why the same rule should not apply to photographs of this character. But the defendants insist that the admission of such evidence rests within the discretion of the trial judge, and consequently the exclusion of the photograph is not reversible error. Whatever discretion the trial judge may have in matters of this kind, such discretion is not unlimited, nor...