Friend v. Kramer

• Decision Date: 22 May 1912
• Docket Number: 179
• Citation: 236 Pa. 618,85 A. 12
• Parties: Friend, Appellant, v. Kramer
• Court: Pennsylvania Supreme Court

85 A. 12

236 Pa. 618

Friend, Appellant, v. Kramer

No. 179

Supreme Court of Pennsylvania

May 22, 1912

Argued May 10, 1912

Appeal, No. 179, Jan. T., 1912, by plaintiff, from order of C.P. Fayette Co., March T., 1911, No. 100, refusing to take off nonsuit in case of Mary E. Friend v. Arthur Raymond Kramer. Affirmed.

Trespass to recover damages for personal injuries. Before UMBEL, P.J.

The facts are stated in the opinion of the Supreme Court.

Error assigned was in refusing to take off nonsuit.

The assignments are overruled and the judgment is affirmed.

H. S Dumbauld, with him Robinson & McKean, for appellant. -- One suing for a personal injury negligently inflicted is not bound to exclude the possibility that the accident might have happened in some other way than alleged, but is required only to satisfy the jury by a fair preponderance of the evidence that it occurred in the manner in which he claimed it did Woodall v. Ry. Co., 192 Mass. 308 (78 N.E. Repr. 446); Boucher v. La Rochelle, 74 N.H. 433 (68 A. Repr. 870); Beauchamp v. Saginaw Mining Co., 50 Mich. 162 (15 N.W. 65); Hoehle v. Heating Co., 5 Pa. Superior Ct. 21; Davies v. McKnight, 146 Pa. 610; Guskavan v. Traction Co., 203 Pa. 521; Brashear v. Traction Co., 180 Pa. 392; McCafferty v. R.R. Co., 193 Pa. 339; Lenahan v. Mining Co., 225 Pa. 218.

R. P. Kennedy, with him George Patterson, for appellee. -- The burden at all time is upon the plaintiff to show by the weight of the evidence that the defendant failed to treat her with reasonable and ordinary professional skill: English v. Free, 205 Pa. 624; Wohlert v. Seibert, 23 Pa.Super. 213; McClain v. Henderson, 187 Pa. 283; Salerno v. Ry. Co., 46 Pa.Super. 243; Price v. R.R. Co., 202 Pa. 176; Ewing v. Goode, 78 Fed. Repr. 442.

Before FELL, C.J., MESTREZAT, POTTER, ELKIN and MOSCHZISKER, JJ.

OPINION

MR. JUSTICE MOSCHZISKER:

The plaintiff sued in trespass to recover damages for physical injuries suffered by her through the alleged negligence of the defendant, a practicing dentist. She averred that the defendant "negligently and unskilfully" injected cocaine into her "gum or jaw" and applied to one of her teeth "a pair of powerful forceps which had not been properly cleansed, and extracted said root or tooth, or a part thereof, applying such force as to fracture the plaintiff's jaw-bone in so doing"; and that "by the use of the unclean instruments aforesaid, her jaw was affected by poisonous germs." The court below nonsuited the plaintiff, and the error assigned is the refusal to take off the nonsuit.

The plaintiff showed that after her tooth had been extracted by the defendant she had been taken ill and obliged to spend some time in a hospital, and that she had suffered great pain in the part of the jaw from which the tooth had been removed but she did not prove that there had been negligence or unskilfullness in administering the cocaine or that her jaw-bone had been fractured. While she claimed that she did not see the defendant cleanse or sterilize his instruments, it is exceedingly doubtful from the testimony whether she was in a position to know whether or not this had been done; but assuming that there was sufficient to take that particular point to the jury, the weakness of the plaintiff's case lies in the fact that she did not show with any degree of certainty that the direful results attributed by her to the use of the alleged unclean instruments came from that cause. The hypothetical question propounded to the expert witnesses, the answers to which were depended upon by the plaintiff to make out her case, stated that she was "in a normal state of health, that her jaw was healthy and sound and not affected or diseased at the time she visited the defendant's office." Counsel for the defendant objected that the question assumed facts not shown, and in overruling the objection the trial judge stated that unless more proof was produced later on, the testimony would not...