Hickerson v. Neely

• Decision Date: 13 January 1900
• Citation: 54 S.W. 842
• Parties: HICKERSON v. NEELY et al. [1]
• Court: Kentucky Court of Appeals

54 S.W. 842

HICKERSON v. NEELY et al. ^[1]

Court of Appeals of Kentucky.

January 13, 1900

Appeal from circuit court, Fayette county.

"Not to be officially reported."

Action by S. C. Hickerson against J. E. Neely and others to recover damages for malpractice. Judgment for defendants, and plaintiff appeals. Reversed.

R. E Lee Morgan, for appellant.

Jas. E Denny, Bronston & Allen, R. C. Stoll, and Morton & Darnell for appellees.

WHITE J.

Appellant instituted this action for damages against appellees (physicians) for negligently setting a broken ankle, by reason whereof it is alleged that in healing it was crooked and painful to use in walking. The answer denied any negligence, and alleged that the crooked condition was caused by the negligence of appellant alone. On trial before a jury at the conclusion of appellant's evidence, the court gave a peremptory instruction to find a verdict for appellees. A verdict was returned and judgment entered in accordance with the instruction, and after a motion for new trial had been overruled this appeal is prosecuted.

The question presented is, was the peremptory instruction properly given? The evidence introduced by appellant conduced to show that in April, 1897, he suffered a fracture of his left leg near the ankle joint; that appellees were regular licensed, practicing physicians and surgeons in Lexington; that on the day of the accident appellees were summoned to appellant's relief, and undertook to, and did, treat the fracture; that five days after the accident appellees reset the broken bones, and incased the limb in a plaster case, and it so remained till removed by appellee Neely, a period of about six weeks; that, when the plaster was taken off, the foot and ankle were crooked, and remained so, and were stiff. The injured leg was exhibited to the jury. Appellant's evidence also tended to prove that he had not in any way injured the leg after it was set. These facts were proven by other witnesses than appellant himself, although no surgeon or expert was called to testify. There was no proof introduced as to the treatment, except by appellant,--that for five days bandages and bags of sand were used around the ankle, and then the leg reset and incased in plaster. It was not shown whether this treatment was the usual and proper treatment for that kind of an injury, or whether it was unskillful to so treat it. However, it did appear in proof that...