Hamilton v. Harris, (No. 6067.)

CourtCourt of Appeals of Texas
Writing for the CourtSwearingen
Citation204 S.W. 450
Docket Number(No. 6067.)
Decision Date12 June 1918
PartiesHAMILTON v. HARRIS.
204 S.W. 450
HAMILTON
v.
HARRIS.
(No. 6067.)
Court of Civil Appeals of Texas. San Antonio.
June 12, 1918.

Appeal from District Court, Bexar County; J. T. Sluder, Judge.

Action by J. A. Harris against Dr. W. S. Hamilton. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Hertzberg, Kercheville & Thomson, of San Antonio, for appellant. T. H. Ridgeway and T. M. West, both of San Antonio, for appellee.

SWEARINGEN, J.


Appellee, J. A. Harris, brought this suit against Dr. W. S. Hamilton, the appellant, to recover damages for personal injuries alleged to have been inflicted upon appellee by the negligent application of X-rays to the body of appellee for the purpose of treating eczema, which application resulted in burning appellee. The cause was submitted to a jury in a general charge. There was a verdict and a judgment in favor of appellee against appellant for $2,500.

The cause alleged was that the X-ray is a dangerous agency; that appellant was negligent because he failed to protect, with a blanket of lead, or a composition of rubber and lead, appellee's body from being burned, such protection being usual and customary; that the opening in the protecting blanket was too large; that the current applied by appellant was too much and too intense, making it too powerful; that appellant exposed appellee to the current for too long a time; and that appellant left the room in which the treatment was administered during the application of the X-ray, whereas he should have remained and watched the effect of the treatment. Injury, pain, suffering, loss of time, permanent injury, etc., were fully alleged.

Appellant answered by general demurrer, general denial, and specially alleged in defense that the injury to appellee was caused by the peculiar condition of appellee's skin, which was alleged to be hypersensitive to X-ray current, and that this idiosyncrasy of appellee's could not have been discovered by appellant prior to the treatment. Other defenses were pleaded, consideration of which is not invoked.

The facts are that appellee was severely burned by an X-ray current while being treated professionally by appellant, who was a practicing physician and an expert in treating skin diseases with the X-ray. The controlling issue of fact made by the evidence is whether the injury was caused by one or more of the acts of negligence alleged by appellee or whether the injuries were suffered because appellee's skin was hypersensitive to the X-ray current. Naturally whether or not appellee did in fact have a hypersensitive skin was an issue. There was evidence of the extent of the injury and loss.

The first and second assignments assail the court's general charge because it did not affirmatively submit to the jury appellant's defense that the proximate cause of the injury was the hypersensitive skin of appellee.

Page 451

The court's charge defined "negligence" to be the failure to exercise ordinary care, defined "ordinary care," and further instructed to find for appellee if the jury believed from the evidence that appellant was negligent as alleged and believed that such negligence was the proximate cause of the...

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3 practice notes
  • Whitmore v. Herrick, No. 38636.
    • United States
    • United States State Supreme Court of Iowa
    • March 6, 1928
    ...179 N. W. 572;Streett v. Hodgson, 139 Md. 137, 115 A. 27;Nixon v. Pfahler, 279 Pa. 377, 124 A. 130;Hamilton v. Harris (Tex. Civ. App.) 204 S. W. 450;Ewing v. Goode (C. C. A.) 78 F. 442;Tady v. Warta, 111 Neb. 521, 196 N. W. 901;Stemons v. Turner, 274 Pa. 228, 117 A. 922, 26 A. L. R. 727;Vau......
  • Whitmore v. Herrick, 38636
    • United States
    • United States State Supreme Court of Iowa
    • March 6, 1928
    ...N.W. 572); Streett v. Hodgson, 139 Md. 137 (115 A. 27); Nixon v. Pfahler, 279 Pa. 377 (124 A. 130); Hamilton v. Harris (Tex. Civ. App.), 204 S.W. 450; Ewing v. Goode, 78 F. 442; Tady v. Warta, 111 Neb. 521 (196 N.W. 901); Stemons v. Turner, 274 Pa. 228 (117 A. 922); Vaughan v. Memorial Hosp......
  • Hamilton v. Harris, (No. 6395.)
    • United States
    • Court of Appeals of Texas
    • June 9, 1920
    ...of the injury may be looked to as a circumstance, in the absence of testimony explaining, it may or may not be conclusive. In this case, 204 S. W. 450, on former appeal, this court "The evidence shows that appellant did not know of appellee's hypersensitiveness, and that there is no way to ......
3 cases
  • Whitmore v. Herrick, No. 38636.
    • United States
    • United States State Supreme Court of Iowa
    • March 6, 1928
    ...179 N. W. 572;Streett v. Hodgson, 139 Md. 137, 115 A. 27;Nixon v. Pfahler, 279 Pa. 377, 124 A. 130;Hamilton v. Harris (Tex. Civ. App.) 204 S. W. 450;Ewing v. Goode (C. C. A.) 78 F. 442;Tady v. Warta, 111 Neb. 521, 196 N. W. 901;Stemons v. Turner, 274 Pa. 228, 117 A. 922, 26 A. L. R. 727;Vau......
  • Whitmore v. Herrick, 38636
    • United States
    • United States State Supreme Court of Iowa
    • March 6, 1928
    ...N.W. 572); Streett v. Hodgson, 139 Md. 137 (115 A. 27); Nixon v. Pfahler, 279 Pa. 377 (124 A. 130); Hamilton v. Harris (Tex. Civ. App.), 204 S.W. 450; Ewing v. Goode, 78 F. 442; Tady v. Warta, 111 Neb. 521 (196 N.W. 901); Stemons v. Turner, 274 Pa. 228 (117 A. 922); Vaughan v. Memorial Hosp......
  • Hamilton v. Harris, (No. 6395.)
    • United States
    • Court of Appeals of Texas
    • June 9, 1920
    ...of the injury may be looked to as a circumstance, in the absence of testimony explaining, it may or may not be conclusive. In this case, 204 S. W. 450, on former appeal, this court "The evidence shows that appellant did not know of appellee's hypersensitiveness, and that there is no way to ......

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