Pike v. Honsinger
|New York Court of Appeals
|49 N.E. 760,155 N.Y. 201
|PIKE v. HONSINGER.
|01 March 1898
Appeal from supreme court, general term, Third department.
Action by George W. Pike against Willis T. Honsinger. From a judgment of the general term (32 N. Y. Supp. 1149) affirming a judgment in favor of defendant entered on a verdict by the court, plaintiff appeals. Reversed.
By this action the plaintiff sought to recover damages from the defendant, a physician and surgeon, for negligence in treating his knee, which had been injured by an accident. On the trial, at the close of the evidence given in behalf of the plaintiff, a motion for a nonsuit was made and denied, but at the close of all the evidence the court directed a verdict in favor of the defendant. After an affirmance by the general term, without an opinion, the plaintiff came here. The facts appear in the opinion.
Thomas F. Conway, for appellant.
Royal Corbin, for respondent.
As the case was not submitted to the jury, we must assume, on this review, that, if they had been allowed to exercise their judgment, they would have found all the facts in favor of the plaintiff that any reasonable view of the evidence would permit. Upon this basis the facts may be stated as follows: On the 2d of May, 1888, the plaintiff, then 44 years of age, with good health and sound limbs, had the patella or kneepan of his right leg broken by the kick of a horse. When the accident happened he was five miles from home and two and one-half miles from the village where the defendant, a physician and surgeon, resided. He drove to the office of the defendant, who was absent, but the father of the defendant, who was also a physician and surgeon, was there, and treated the injury by applying on each side a strip of adhesive plaster 12 or 15 inches long to the calf of the leg, and running it over the knee to the side of the thigh. The leg was then bandaged, a splint 18 inches long put on, another bandage wrapped over all, and thereupon the plaintiff walked to his wagon and rode home over a rough road. He noticed on the way that the bandage and splint had become loose, and on reaching home, with the aid of his wife, he tightened them as well as he could The leg received no further treatment, nor did the defendant see it until May 8th, six days after the accident, when he came to plaintiff's house in response to a message requesting him to call. He was told how his father had treated the injury; that the plaintiff rode home in a buggy and walked into the house, and that the bandage had come off and the splint had become loosened. At this time, when the defendant took charge of the case, the leg was so swollen at the knee that it was as large as the thigh, even when covered with clothing. He took off the bandages and splint, examined the injury, pronounced it a rupture of the ligaments, and told the plaintiff that he would have to lie in bed perfectly quiet until they were united, which might take six or eight weeks. The bandages and splint were off about half an hour with nothing in their place, and during this time he measured both legs with a tape and rule and there was a difference of one-half inch between the two. When the rule was put across from one knee to the other it was not straight, but ‘higher up’ on the injured than on the sound leg. After washing the parts he put the bandages and splint on ‘about the same as his father had,’ not in the shape of a figure ‘8,’ nor by attaching the bandages to the splint at either end, nor were any means used to keep the leg steady below the splint. After placing some cushions on a board at the foot of the bed, and placing the foot on them, he went away saying he would come again and bring a longer and better splint. He returned after an interval of three days, took off the short splint and the bandages, and left them off while treating the leg for from twenty minutes to half an hour. He bathed the leg in warm water, restored the bandages and put on a long splint, which reached farther up the leg than the other and clear down to the heel, where the outer bandage was wrapped around the foot and fastened. The leg was still swollen and nothing was done to reduce the swelling on any of the visits except as stated. He made five visits in all, two during the first week, and the others on the 26th and 30th of May and the 7th of June, and at the latter date he took off the long splint and put on the short one again. On the day last named, or about five weeks after the accident, in response to questions put by the plaintiff, who was an assessor, the defendant told him he could go out assessing, but must be careful and not hurt the leg, saying that if he was thrown out of the wagon or was injured in any way by his own negligence he did not want to be responsible for it. He also told the plaintiff that he could walk around the house with the short splint on. The plaintiff did walk about the house a little, and in a few days began to attend to his business as assessor, being out two or three days in a buggy. He testified that his leg was not injured during this time, and that while in the wagon his heel rested on some boards attached to the dashboard and arranged for the purpose. The roads were rough and jolted a good deal and the defendant was familiar with their condition, as he traveled them frequently. During none of this time did he make any effort to bring the separated parts of the patella together, and the adhesive plasters, which the old doctor had applied, were left on until the 15th of June, when the plaintiff called at the defendant's office, pursuant to his direction, for further treatment. The defendant then took the plasters off, put his hand under the leg and tried to bend it, but used no means to keep the parts of the patella together as he did so. He washed the leg, which was still swollen, and put the short splint on again, saying that a ligamentous union had begun. While treating it on this occasion there was nothing whatever on the leg. He gave the plaintiff some liniment to use, told him to work and bend the leg, and showed him how to put the splint and bandage on, but gave no directions to keep the parts of the patella together while working the leg, and after that visit the only thing put on was the short splint and bandage. When the plaintiff told him he had been out assessing the defendant did not object, but said that the leg was doing well. The following Saturday the plaintiff called at the office again and his leg was treated as it had been before. The defendant took the leg across his knee and tried to work it, and said if it did not loosen up he would put the plaintiff under the influence of ether and ‘break the damn thing down.’ He also told the plaintiff to use some skunk's oil, if he could get it, and he did so, and after that the knee ‘began to loosen up some’ and the upper part of the patella ‘began to slip up some.’ About the fifteenth of July the plaintiff told the defendant that his leg was not set right as there was a space between the parts of the patella, but the latter read from a work on surgery...
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