Fawcett v. Ryder

• Decision Date: 15 March 1912
• Citation: 135 N.W. 800,23 N.D. 20
• Parties: FAWCETT v. RYDER
• Court: North Dakota Supreme Court

135 N.W. 800

23 N.D. 20

FAWCETT v. RYDER

Supreme Court of North Dakota

March 15, 1912

Appeal by defendant from a judgment of the District Court for Dickey County, Allen, J., in plaintiff's favor in an action brought to recover damages for personal injuries.

Affirmed.

Ball Watons, Young, & Lawrence, and E. T. Conmy, for appellant.

W. S Lauder and Jas. M. Austin, for respondent.

OPINION

GOSS, J.

This action is brought to recover damages for personal injuries received by plaintiff while in defendant's hospital. The complaint charges negligence in four particulars: (1) That plaintiff was by defendant placed in a bed wherein a bottle of hot water was negligently, carelessly, and wrongfully left by defendant, resulting in plaintiff's injury. (2) That plaintiff was by defendant laid upon said bottle of hot water so that the same came in close contact with plaintiff to plaintiff's injury described. (3) That plaintiff's back was burned by reason of the carelessness and negligence of the defendant in not removing or causing to be removed from the bed said bottle of hot water before placing plaintiff therein. (4) That plaintiff's back was burned by reason of the carelessness and negligence of the defendant in not placing said bottle of hot water in such position in said bed that the same would not come in contact with the body of the plaintiff, and that by coming in contact therewith plaintiff was burned. The negligence charged then is summarized in brief into (a) the placing plaintiff in bed with the hot-water bottle; (b) laying plaintiff on said bottle; (c) (the equivalent of the first) in leaving the water bottle in the bed with plaintiff; and (d) failure to so place the bottle in the bed that it could not come in contact with plaintiff to his injury. The sufficiency of the proof to sustain the verdict under the complaint is questioned, and was challenged by a motion for directed verdict at the close of plaintiff's case, and renewed at the close of the trial. An examination of the proof raised by this assignment makes it necessary to recite the evidence bearing upon the negligence charged.

When plaintiff rested his case the testimony disclosed the following uncontroverted facts: Defendant was a physician and surgeon at Oakes, North Dakota, operating a hospital for profit in connection with his practice, with one trained nurse and two assistant nurses in his employ. Plaintiff engaged defendant in a professional capacity to treat, operate upon him, and have him cared for until he regained health, all for hire. Plaintiff had been removed by defendant to the operating room of the hospital, wherein defendant successfully operated upon him for appendicitis. He was then taken from the operating table directly to the bed in question, and placed therein by the defendant and assistants while plaintiff was helpless under anaesthetics. He was lifted from the operating table and placed in bed. This bed had been prepared for plaintiff's reception under the direction of a trained nurse, to whom defendant had given general instructions as to such preparation. It was customary in all hospitals to so prepare the bed by heating that the shock from the operation might be reduced and the patient be otherwise benefited. The operation was begun by administering of anesthetics at about half-past five o'clock in the evening, and it was from three quarters of an hour to an hour and one quarter thereafter until, at the completion of the operation, plaintiff was placed in the bed so prepared. At 10 or 11 o'clock, and after the patient recovered consciousness, and some hours after defendant had left, plaintiff complained that his back was burning, and thereupon the nurse immediately took from under him a hot-water sack, or rubber hot-water bottle, partially filled with hot water. As to this we quote the following from the testimony of plaintiff's father: "Mrs. Foster [nurse] came into the room, threw the sheet back from him and took a sack out from under him, the hot-water sack. It was a big rubber sack filled with hot water, an ordinary hot-water bottle. The bag when taken out from under him was leaking. Mrs. Foster threw it upon the floor. I went over and picked it up, and it was so hot I could not hold it in my hands, and there was a stream of water flowing out of it." The witness further testifies that he and Mrs. Foster then examined plaintiff's back and found it burned over a large area covering "the whole back from shoulders clear to his hips, and in a minute or two the blister raised up all over his back just the same as any other blister." Testimony was received as to the healing of the wound, and the pain and suffering occasioned. The complaint asked judgment for damages in the sum of $ 25,000, and the jury awarded plaintiff a verdict for $ 1,800, also returning the following special findings:

"(1) Was the injury to plaintiff caused by his being placed on or in contact with the hot-water bag referred to in the testimony? A. Injury was caused by plaintiff coming in contact with the hot-water bag through negligence of defendant.

"(2) Was the injury to the plaintiff caused by the breaking of the hot-water bag and the hot water therein burning the plaintiff? A. No.

"(3) Was the injury caused by both the contact with the hot-water bag and the breaking of same, and the consequent burning of plaintiff by the hot water escaping from the bag? A. No."

These are important findings as limiting the cause of injury to that pleaded in the complaint; viz., that the injury was caused by plaintiff coming in contact with the hot-water bag. This eliminates from consideration any question of variance between the complaint and the proof, in that the jury expressly found that the injury did not result because of the leak in the water bag or from the breaking of said bottle, resulting in plaintiff being scalded by escaping water. The jury having specifically found, then, that plaintiff's injury was occasioned by his coming in contact with the hot-water bag through negligence of the defendant, defendant's assignment of error that the evidence is insufficient to warrant the verdict raises the question: "Does the evidence sustain such finding of fact? On this question it must be remembered plaintiff was unconscious when placed in the bed after the operation. As the result of his complaint of pain on his first coming to consciousness, the injury and its cause were simultaneously discovered. The size of the burn and its location are significant. The jury might in reason have concluded from the location of the injury in the middle of the back that plaintiff had been placed in contact with the bottle carelessly left in the bed. Beyond all question the burn came from the bottle or its contents. Defendant does not contend otherwise or suggest any other possible explanation. As the testimony stood at the close of plaintiff's case, reasonable men might conclude the water bottle to have been dangerous to contact with the body, and that it was negligence to leave the same in such a position in the bed that it could come in contact with the insensible patient to his injury. And as defendant personally placed plaintiff in bed, the jury has evidence upon which to have found the negligence to have been defendant's, in not removing the bottle or in suffering it to remain where contact could be had by plaintiff therewith. If it needs adjudicated precedent to warrant a conclusion that under these facts defendant was negligent, see a case of burning by a hot-water bag under identical circumstances, reported in Ward v. St. Vincent's Hospital, 23 Misc. 91, 50 N.Y.S. 466, wherein the court's opinion states: "It seems from the nature of the act here complained of that the veriest tyro in nursing would have known better than to have been so grossly negligent as was the nurse in charge of the plaintiff" patient, and the hospital was absolved from liability, because the act so grossly negligent did not evince any want of training or knowledge, but instead, was a single act of thoughtlessness not covered by the hospital's duty to furnish competent nurses. In other words, the act was so grossly negligent as to excuse liability, which theory was disaffirmed by the reversal of the case in Ward v. St. Vincent's Hospital, 39 A.D. 624, 57 N.Y.S. 784, on appeal, where it was held a matter for the jury to determine whether a single act of negligence of a nurse established her incompetency, and rendered the hospital liable as for employing incompetent servants in nursing. Had the act of negligence in the case at bar been that of Mrs. Foster, instead of defendant, under this holding defendant could be held liable. On the other hand, from the doctor's viewpoint, with the successful termination on his mind of a dangerous operation, a matter of life or death to this patient, in the mere trusting others with such minor details, matters of secondary importance only, all things, considered, reasonable men might conclude no proof of negligence was made out. But as to whether defendant's acts constituted negligence, the law would compel the submission of the question of negligence under the facts in evidence to the jury for its determination. There is no question, under the pleadings or the proof, but what plaintiff was a patient for hire in this hospital of the defendant. The hospital was defendant's private institution, operated for his benefit in connection with his practice. It was not a charitable institution.

If defendant personally placed plaintiff in contact with the hot-water bottle, or in such near proximity thereto that plaintiff came in contact therewith to the injury complained of, no question of master and servant is...