James v. Robertson

• Decision Date: 14 September 1911
• Docket Number: 2221
• Citation: 117 P. 1068,39 Utah 414
• Court: Utah Supreme Court
• Parties: JAMES v. ROBERTSON

117 P. 1068

39 Utah 414

JAMES v. ROBERTSON

No. 2221

Supreme Court of Utah

September 14, 1911

APPEAL from District Court, Third District; Hon. M. L. Ritchie Judge.

Action by Jane James against J. E. Robinson.

Judgment for plaintiff.Defendant appeals.

AFFIRMED.

C. S Varian for appellant.

APPELLANT'S POINTS.

"In order that a decision of fact may be exempt from disturbance for not being supported, on the ground that there is evidence on both sides, there must be substantial evidence on both sides--in other words, there must be a substantial conflict.And although a finding by a jury or trial will not be distributed on the ground that it is not warranted by the evidence where there is presented a fair, reasonable ground for a difference of opinion, yet where the great current of evidence is against the finding or verdict and the appellate court is convinced that it is wrong, it will not be deterred from setting it aside by the contention that one or two general statements or assertions of one or two witnesses bring the case within the rule which governs where there is a substantial conflict of evidence."(Spelling on New Trial and Appellate Practice, p. 1445, sec. 678;Field v Shorb,99 Cal. 661-666, 34 P. 504-505;In Re Coburn,11 Cal.App. 604, 105 P. 925.)This is the general rule, and this court has given it substantial recognition from time to time.

It shall be claimed in support of the verdict that there are circumstances which tend to establish the theory advanced by the plaintiff, the answer is that the circumstances in the case are not inconsistent with a theory that the injury was not the result of any negligence of the defendant.(Asbach v. Chicago, B. & Q. Ry. Co.,74 Iowa 248, 37 N.W. 182;Chicago, R. I. & P. Ry. Co. v. Rhoades,64 Kan. 553, 68 P. 58;Ruppert v. Brooklyn Heights R. R. Co.,154 N.Y. 90, 47 N.E. 971;Smith v. First Nat'l Bank,99 Mass. 605;U.S. F. & G. Co. v. Des Moines Nat'l Bank,8 C. C. A. 145;Ewing v. Goode,78 F. 442-444;Crafts v. Boston, 109 Mass. 519-521.)

The evidence of specialists undisputed and undiscredited, upon highly recondite subjects, about which men in general can have no knowledge, must be accepted as decisive of such questions by the court and jury.(Ewing v. Goode,78 F. 444;Stern v. Laung (La.), 31 313;Shelton v. Hacelip(Ala.),51 So. 937;Farrell v. Haze,157 Mich. 374, 122 N.W. 197;Petigrew v. Lewis(Kan.),26 P. 458); but their opinions may not be disregarded, if not discredited and the nature of the case is such that a juror's experience, knowledge and common sense cannot aid him in reaching a correct conclusion.(Kerwin v. Friedman,127 Mo.App. 519, 105 S.W. 1102;Roger's Expert Testimony, p. 490, par. 5;Getchell v. Hill,21 Minn. 464;Woods v. Barker,49 Mich. 295, 13 N.W. 597;Neifert v. Hasley(Mich.),112 N.W. 705;Feeney v. Spalding(Me.), 35 A. 1027.

It is not enough to show the injury together with the expert opinion that it might have occurred from the negligence and also other causes.Where the evidence of plaintiff is consistent with an hypothesis that the defendant it not negligent, and also with one that he is, plaintiff's proof tends to establish neither.Patten v. Texas Pac. R. R. Co.,179 U.S. 658-663;U.S. v. Am. Surety Co.,161 F. 151;Ewing v. Goode,78 F. 442;Searles v. Manhattan Ry. Co.,101 N.Y. 661, 5 N.E. 66;Harvard County v. Wise,75 Md. 38, 23 A. 65;The Nellie Flag, 23 F. 671;Electric Co. v. Croning,66 F. 658;2 Labatt M. & S., sec. 837 and notes.

Where the premises are uncertain, no inference of fact or law can be reliably drawn therefrom, and where circumstantial evidence is relied upon to prove a fact, the circumstances must be proved--they cannot be presumed.(U.S. v. Ross,92 U.S. 281-283;Manning v. Ins. Co.,100 U.S. 693-697;Xenia Bank v. Stewart,114 U.S. 224-231;Cunard Company v. Kelly, 126 F. 610-615.)

In cases of malpractice, evidence showing a mere conjectural possibility that unfavorable results were due to a want of skill or care on the part of the physician or surgeon, is not sufficient to make out plaintiff's case.Liability in such a case cannot be based upon non-expert testimony.There must be expert evidence tending to show a lack of care or skill, and since the plaintiff must show an injury resulting from the lack of skill or care of defendant, if he fails in this particular a verdict in his favor is contrary to law and must be set aside.(3 Wharton & Stille's Med. Jur.(1905), sec. 517;Barker v. Lane,23 R. I. 234, 49 A. 963;Sheldon v. Wright67 A. 807-814;Georgia R. K. Co. v. Ingram,40 S.E. 76;Lowe v. Metropolitan St. Ry. Co.(Kan.), 130 S.W. 116.)

It is submitted that in the light of the evidence and the settled conviction of the trial judge, the defendant had a legal right to a new trial.(Sharp v. Green,22 Wash. 677, 62 P. 150;In Re Carrigan Estate,194 Cal. 81; 37 P. 785;Patten v. Hyde,23 Mont. 23, 57 P. 407-408 and cases cited;Chicago, R. I. & P. Ry. Co. v. Reardon(Kan.),40 P. 931;Railroad Company v. Ryan,30 P. 108;Law v. Smith,34 Utah 395-407;Brown v. Salt Lake City, 33 Utah 541-2.

W. H. King for respondent.

RESPONDENT'S POINTS.

The question of the sufficiency of the evidence to support a verdict or judgment in a case at law, under section 9, article 8 of the Constitution of Utah, is exclusively within the province of the trial court and the jury.(Sec. 9,art. 8 Const.;Hill v. Ry.,23 Utah 84;Nelson v. Ry.,15 Utah 325;Whittaker v. Ferguson,16 Utah 243;Bacon v. Thornton,16 Utah 138;Kennedy v. Ry.,18 Utah 329;Wilde v. M. Co,23 Utah 265;Linden v. M. Co.,20 Utah 134;Budd v. Ry.,23 Utah 515;Loan Co. v. Desky,24 Utah 347;Braegger v. Ry.,24 Utah 391;Whitmore v. R. R., 24 Utah 215.)

FRICK, C. J. McCARTY, J., concurs.STRAUP, J., concurring in the result.

OPINION

FRICK, C. J.

This action was instituted by respondent to recover damages for the loss of the sight of one eye, which she alleged was caused through appellant's unskillfulness and negligence.Respondent, in her complaint, among other things, alleged: "That on the 26th day of February, 1906, the plaintiff went to the office of the said defendant, at Bingham Junction, Utah, and that then and there, at plaintiff's request, the defendant was employed to remove a cyst from the upper eyelid of plaintiff's right eye."That after the defendant removed said cyst from defendant's eye, as aforesaid, the said defendant applied a certain liquid to the upper eyelid of the plaintiff's right eye, which said liquid plaintiff believes to have been some kind of an acid.That said liquid, which was applied to said plaintiff's eye, as aforesaid, was allowed to drop from the instrument with which said defendant was applying said liquid upon plaintiff's face, making a number of burns upon plaintiff's face.That within a few minutes after said defendant applied said liquid to said plaintiff's eye, as aforesaid, the said plaintiff began to suffer intense pain and agony, and continued to suffer the same for a period of about twenty-five days.That said plaintiff continued to visit defendant for the purpose of having said eye treated until on or about March 12, 1906, when plaintiff was informed by defendant that he could do nothing more for her, and plaintiff then came to Salt Lake City, and entered St. Mark's hospital March 17, 1906. . . .That for three weeks after defendant placed said liquid, as aforesaid, upon plaintiff's eye said plaintiff was unable to get any rest on account of the intense pain and suffering which said liquid, being placed upon plaintiff's eye, caused her, and was compelled to walk the floor intermittently day and night.That said liquid which said defendant placed upon plaintiff's eye, as aforesaid, burned to the pupil of plaintiff's eye in such a manner that the sight thereof is practically destroyed, and caused a scar to form upon the plaintiff's said right eye, destroying the sight thereof, and that the plaintiff is compelled, when out of doors, to wear colored glasses, or some covering or protection over her eye, or keep it shut while in the light.Plaintiff further alleges that the present condition of her eye, and the loss of sight thereof from which she is now suffering, is the natural and proximate result of the negligence and lack of skill of the said defendant, used when operating upon her eye, as aforesaid.Said plaintiff further alleges that said defendant was negligent and careless and lacked the proper skill in performing the operation upon her eye, as aforesaid, in this, to-wit: In negligently and unskillfully placing upon plaintiff's eye such liquid, as aforesaid, which the plaintiff believes to have been some kind of acid, in such a manner that said liquid would get into the eye and burn through the lid, and causing the pupil of the eye to be burned and scarred, although the defendant well knew, or should have known, had he possessed the proper amount of skill for performing such an operation, that said liquid, if it were allowed to touch the ball of the eye, would in all probability destroy the sight thereof."

Appellant, in his answer to the complaint, admitted that he had removed a cyst from the upper eyelid of respondent's right eye; that he"applied a certain liquid to the outside of the upper eyelid of plaintiff's right eye," and that "the sight of the plaintiff's right eye was and is impaired by reason of a certain corneal ulcer, but that said ulcer was in no wise the result of the treatment of this defendant, or the operation aforesaid."Appellant also denied all negligence and want of skill on his part, and affirmatively set forth the facts as he asserted them to be with respect to the operation, and as to what caused the loss of sight of plaintiff's eye.

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