Norkett v. Martin

Decision Date07 May 1917
Docket Number8840.
Citation63 Colo. 220,165 P. 256
PartiesNORKETT v. MARTIN.
CourtColorado Supreme Court

Error to District Court, Denver County; Charles C. Butler, Judge.

Action by Margaret L. Norkett, an infant, by next friend, Alice Norkett, against H. H. Martin. Judgment for defendant, and plaintiff brings error. Affirmed.

Frank McLaughlin and B. B. Laska, both of Denver, for plaintiff in error.

William J. Miles, of Denver, for defendant in error.

TELLER, J.

The plaintiff in error, a minor suing by her next friend, was plaintiff below in an action against defendant in error, a physician, to recover damages for alleged negligence in diagnosing and treating an ailment from which she was suffering. A verdict was returned for the defendant, and a judgment of dismissal entered thereon.

The only error alleged is in an instruction which reads as follows:

'In considering whether the defendant, in his diagnosis, care and treatment of the plaintiff's injury or disease exercised ordinary care, you cannot set up a standard of your own, but must be guided in that regard solely by the testimony of the physicians, and if you are unable to determine from the testimony of the physicians what constituted ordinary care and skill under the circumstances of this case, there would be a failure of proof upon the only standard for your guidance, and the evidence would be insufficient to warrant any verdict for the plaintiff.'

Counsel concede that this instruction is a copy of one which was approved in McGraw v. Kerr, 23 Colo.App. 163, 128 P. 870, but insist that a difference in facts renders that case inapplicable. We cannot agree with that conclusion. The court there was considering, and discussed at some length, by what evidence a jury should be guided in determining whether or not a physician had exercised such care and skill as his employment required, and held that it was a question for experts. It also held that 'if no standard was established by the testimony of physicians, then the jury had no standard.' This case is clearly within the rule thus laid down. The principle on which the rule is based was announced by the court in Jackson v. Burnham, 20 Colo. at page 536, 39 P. 577, and is supported by abundant authority.

The instruction was correct, and the judgment is affirmed.

WHITE, C.J., and HILL, J., concur.

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10 cases
  • Pedigo v. Roseberry
    • United States
    • Missouri Supreme Court
    • March 11, 1937
    ...Powell, 87 Kan. 142, 148, 123 P. 881, 883, quoted and followed in Paulich v. Nipple, 104 Kan. 801, 806, 180 P. 771, 773; Norkett v. Martin, 63 Colo. 220, 165 P. 356; McGraw v. Kerr, 23 Colo.App. 163, 171, 128 P. 874(10, 11); Stacy v. Williams, 253 Ky. 353, 368, 69 S.W.2d 697, 705(10); Spaul......
  • City of Eveleth v. Ruble
    • United States
    • Minnesota Supreme Court
    • December 6, 1974
    ...Surf Realty Co. v. Standing, Supra; Ressler v. Nielsen, Supra; Rice v. Tissaw, 57 Ariz. 230, 112 P.2d 866 (1941); Norkett v. Martin, 63 Colo. 220, 165 P. 256 (1917); McGraw v. Kerr, 23 Colo.App. 163, 128 P. 870 (1912). See, also, Annotation, 53 A.L.R.2d 142; Klein, Making the Most of Your E......
  • Melville v. Southward
    • United States
    • Colorado Supreme Court
    • May 14, 1990
    ...See, e.g., Bloskas v. Murray, 646 P.2d 907 (Colo.1982); Dixon v. Norberg, 113 Colo. 352, 157 P.2d 131 (1945); Norkett v. Martin, 63 Colo. 220, 165 P. 256 (1917); McGraw v. Kerr, 23 Colo.App. 163, 128 P. 870 (1912). The standard of care in a medical malpractice action is measured by whether ......
  • Taylor v. Shuffield
    • United States
    • Texas Court of Appeals
    • May 25, 1932
    ...137 Md. 227, 112 A. 179; Carraway v. Graham, 218 Ala. 453, 118 So. 807; Patterson v. Marcus, 203 Cal. 550, 265 P. 222; Norkett v. Martin, 63 Colo. 220, 165 P. 256; Slimak v. Foster, 106 Conn. 366, 138 A. 153; Phebus v. Mather, 181 Ill. App. 274; Ramberg v. Morgan (Iowa) 218 N. W. 492; Raine......
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