Robinson v. Ferguson, 16047.

• Decision Date: 18 October 1939
• Docket Number: No. 16047.,16047.
• Citation: 22 N.E.2d 901,107 Ind.App. 107
• Parties: ROBINSON v. FERGUSON.
• Court: Indiana Appellate Court

107 Ind.App. 107

22 N.E.2d 901

ROBINSON

v.FERGUSON.

No. 16047.

Appellate Court of Indiana, in Banc.

October 18, 1939.

Appeal from Pike Circuit Court; Eldo Wood, Judge.

Action by Hattie Robinson against Chelsey B. Ferguson, a dentist, to recover damages for alleged negligence in breaking a hypodermic needle and allowing it to remain in plaintiff's jaw. Judgment for defendant, and plaintiff appeals.

Affirmed.

R. W. Armstrong, of Evansville, for appellant.

Craig & Craig, of Evansville, for appellee.

DE VOSS, Presiding Judge.

Appellant filed her complaint for damages in one paragraph charging appellee with negligence in the handling of a needle, while injecting medicine into the jaw of appellant, in such a manner that he carelessly and negligently broke said needle and in allowing the same to remain in the left side of the lower jaw of appellant.

To this complaint the appellee filed an answer in general denial.

The cause was submitted to a jury for trial and at the conclusion of appellant's evidence, upon written motion of appellee the court instructed the jury to find for appellee. Pursuant to said instruction the jury returned a verdict for appellee and the court rendered judgment thereon. Appellant, within the proper time, filed her motion for a new trial which was overruled by the court, and this appeal followed. The assignment of errors questions the action of the trial court in giving said peremptory instructions to the jury and in overruling appellant's motion for a new trial.

While there are eight reasons specified in the motion for a new trial, an analysis of the motion discloses that it is based upon the following available reasons: (1) the verdict of the jury is not sustained by sufficient evidence; (2) the verdict of the jury is contrary to law; (3) error of court in the giving of the peremptory instruction to the jury.

It is noted that the complaint herein does not charge a lack of skill nor that appellee was incompetent in the practice of his profession, but charges negligence in two particulars, to wit: negligence in handling the needle in such a way as to break it off in the jaw of the plaintiff, and negligence in allowing the same to remain in the jaw.

Appellant in her brief states, “The court took the case from the jury upon the theory that this kind of injury could only be proven by expert testimony.”

[1] The question as to when and under what circumstances a trial court should direct a verdict has been well considered many times by this Court, and the rule is correctly stated in the case of Westfall v. Wait et al., 1905, 165 Ind. 353, 358, 73 N. E. 1089, 1091, 6 Ann.Cas. 788, as follows: “The trial court directed a verdict in favor of appellees, and this is assigned and urged upon us as error. If the evidence was of such a character as to make it clear to the court that a verdict, if returned for appellant, upon whom the burden of the issue rested, could not stand, then it became the duty of the court to direct a verdict for appellees, and there could be no error in so doing.”

[2] As a general proposition the question of negligence is a matter for the jury to determine, but where there is a total lack of evidence to sustain the allegations of the complaint it is the duty of the trial court to so instruct the jury.

The evidence is uncontradicted, and summarized briefly is as follows: Appellant, on October 30, 1934, consulted appellee dentist relative to a tooth that was bothering her, and appellee recommended an extraction; preparatory to this, appellee, while injecting medicine into appellant's jaw, broke off therein the hypodermic needle which he was using, appellant being informed of the accident by appellee. After an unsuccessful attempt to remove the needle, appellee took appellant to a Boonville dentist who, after taking an X-ray, also failed to remove the needle. Appellee then next took appellant to a surgical dentist in Evansville; X-rays were again taken, but a removal of the needle was not effected. On January 11, 1935, appellee again took appellant to the same surgical dentist, but the attempted removal was again unsuccessful. Appellee on March 25, 1935, took appellant to a dental surgical specialist in Louisville, Kentucky, who took X-rays, but was unable to remove the needle after two separate attempts.

Appellant claims that she has had pains, a nervous condition, spots before her eyes, and poor health as a result of the accident; that her weight has fallen from one hundred and ninety pounds to one hundred and forty pounds; and that she has been unable to do her housework.

One physician testified that appellant's mouth was swollen, that it was possible for the needle to reach various organs, and that appellant's pain would not subside if the needle was still there. Another physician deposed that he had examined the appellant in the fall of 1936 and had found her suffering from nervousness, neuralgia, and a numbness of the face; that the needle in her jaw was the first or exciting cause of her condition; and that appellant was permanently injured. Appellant testified that she had had gall blatter trouble.

The surgical dentist deposed that dentists and dental surgeons used needles in their practice for the purpose of inducing local anaesthetic; that the needle in appellant's jaw was pointed toward the ear, and had not moved; that the needle was not the cause of appellant's condition; and that it was unlikely that various effects might be presented on the appellant by the needle working itself into different places in the body.

The court sustained appellee's motion for a directed verdict, and peremptorily directed the jury to find for the defendant. The court then sustained the appellee's motion for judgment on the verdict.

[3] There are two specific allegations of negligence involved herein: (1) negligence of appellee in breaking off the needle in the jaw of appellant; (2) negligence of appellee in allowing the needle to remain in the jaw of appellant. Evidence was introduced for the purpose of sustaining each of these allegations. Approaching the two questions involved inversely, we find that immediately after the needle broke in the jaw of appellant, appellee attempted to remove it; but being unable to do so, he informed appellant of the circumstance and told her that he would have to take her to Boonville, which he did. At Boonville an X-ray was made and the needle located, and the...