Connelly v. Cone
| Decision Date | 10 August 1920 |
| Citation | 224 S.W. 1011,205 Mo.App. 395 |
| Parties | GEORGE W. CONNELLY, Appellant, v. M. L. CONE, et al., Respondents |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court of Pemiscot County.--Hon. Sterling H McCarty, Judge.
AFFIRMED.
Judgment affirmed.
Phillips & Phillips and J. R. Brewer for appellant.
(1) Contributory negligence is an affirmative defense and the burden of proof is on the defendant. Edington v. Ry Co., 204 Mo. 69; Von Trebra v. Light Co., 209 Mo. 662; Cool v. Patterson, 189 Mo.App. 717, 727; Petty v. Ry. Co., 88 Mo. 306; Hudson v. Ry Co., 101 Mo. 13; Young v. Iron Co., 103 Mo. 324. (2) Instruction No. 4 given for the defendants contradicts Instruction No. 8 given for the plaintiff as to the burden of proof of contributory negligence and is therefore error and reversible error. Shepard v. Transit Co., 189 Mo. 373; Mansur-Tebbets Imp. Co. v. Ritchie, 143 Mo. 612; Russell v. Peer, 133 Mo.App. 729; Ross v. Met. Street Ry. Co., 132 Mo.App. 481.
R. J. Smith and C. G. Shepard for respondents.
Plaintiff's case is based on the theory that defendants as practicing physicians, and surgeons negligently conducted themselves in treating and reducing the fracture suffered by him. Plaintiff's cause of action being based on negligence on the part of the defendants it was incumbent upon him to show that defendants in fact conducted themselves in a negligent manner in treating his injury, and plaintiff failing to show negligence on the part of defendants failed to make out his cause of action, and defendants' peremptory instruction should have been given. Marshall Livery Company v. McKelvy, 55 Mo.App. 240.
This is a suit brought by the plaintiff against three physicians, alleging that he was injured by being thrown out of a buggy causing his leg to be fractured, and charging that defendants negligently and unskillfully conducted themselves in and about setting and treating the fracture and in attempting to set and reduce the broken and fractured bones to their proper positions and place and to attend, to cure and heal the same, and that by reason of their negligence and unskillfulness plaintiff's leg has never been healed and that he has entirely lost the use of same, and that through said negligence and unskillfulness of said defendants his right leg is deformed. His petition sought damages for the sum of $ 7,499.
The answer consists of a general denial and a charge which in effect amounts to contributory negligence, in that the plaintiff refused to permit them to treat the leg as they advised, and failed in many ways to observe the instructions given him concerning the treatment they prescribed.
The injury sustained by plaintiff was occasioned by a team of horses running away with a buggy in which he was riding. He was about 55 years of age. The facts show that he was thrown out of the buggy and fell so that the bones of his leg which was broken protruded through the flesh, underwear, overwear and through a rubber boot and stuck in the ground; that before any medical aid could be received he was driven some ten or twelve miles, and that it was at least two hours before treatment could be given.
It is shown that shortly after he was thrown out of the buggy, and while on the ground, the man assisting him into the buggy and plaintiff straightened out the leg which had been broken as heretofore set out, pulling the bone back into the flesh. There was necessarily a certain amount of dirt, trash and leaves which stuck to the bones and which was pulled back into the flesh by them right after the accident, and a couple of hours before the medical aid of defendants was received. The evidence further shows that the injury was a compound fracture and that there were several pieces of loose bone which remained in the plaintiff's leg.
The cause was tried to a jury and a verdict was returned for the defendants.
The only error alleged by the plaintiff, who is the appellant, goes to the giving of an instruction asked by the defendants, which instruction did place the burden on pl...
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