Van Skike v. Potter

• Decision Date: 09 December 1897
• Citation: 73 N.W. 295,53 Neb. 28
• Parties: VAN SKIKE v. POTTER ET AL.
• Court: Nebraska Supreme Court

53 Neb. 28

73 N.W. 295

VAN SKIKE

v.POTTER ET AL.

Supreme Court of Nebraska.

Dec. 9, 1897.

Syllabus by the Court.

1. The evidence examined, and held to sustain the findings of the jury,--that defendants did not contract with plaintiff to effect for him a permanent cure, and did not contract to visit and treat him until he was cured; that defendants were not guilty of negligence in the treatment given the plaintiff, nor in adopting and pursuing the method of treatment followed by them.

2. The law does not require of a surgeon absolute accuracy, either in his practice or his judgment. It does not hold him to the standard of infallibility, nor require of him the utmost degree of care or skill, but that in the practice of his vocation he shall exercise that degree of knowledge and skill ordinarily possessed by members of his profession.

3. A petition alleged that defendants agreed to visit and treat plaintiff until he recovered. The answer was a general denial. The defendants were permitted to testify that, at the date of their last visit to plaintiff, they informed him that they should not return unless they should be requested so to do; that they received no such request, and did not revisit plaintiff. Held, that this evidence was relevant, under the pleadings.

4. In a suit against a surgeon for damages for alleged negligence in operating upon and treating plaintiff's fractured kneecap, the district court refused to permit persons called as jurors to answer, on their voir dire examination, whether they were members of any church organization or secret society. Held, that it does not appear, nor can it be inferred from any fact in the record, that the district court abused its discretion or erred in its ruling in this matter.

5. A litigant has the right to examine a person called as a juror for the purpose of ascertaining whether or not there exist grounds for challenging such person for cause. But what questions may be asked such a person, and what range or scope such an examination may take, is a matter committed to the sound discretion of the trial court; and its ruling will not be disturbed unless there has been an abuse of discretion, to the prejudice of the party complaining.

6. A juror's voir dire examination set out in the opinion, and held that the district court did not err in overruling the plaintiff's challenge lodged against him on the ground of his bias and prejudice.

7. In a suit for damages against a surgeon for alleged negligence in operating upon and treating plaintiff's fractured kneecap, text-books on surgery, though standard authority on the subject, cannot be read to the jury as independent evidence of the opinions and theories therein expressed or advocated.

Error to district court, Seward county; Wheeler, Judge.

Action by Ernest Van Skike against Potter & Reynolds, doctors, for damages resulting from their negligently treating plaintiff's wound. Judgment was rendered in favor of defendants, and plaintiff brings error. Affirmed.F. I. Foss, J. D. Pope, Biggs & Thomas, and W. R. Matson, for plaintiff in error.

Norval Bros., G. W. Lowley, D. C. McKillip, and J. L. McPheely, for defendants in error.

RAGAN, C.

On the 4th day of July, 1890, Ernest Van Skike, while playing baseball, fractured his kneecap. For negligently treating this wound, he sued Drs. Potter & Reynolds in the district court of Seward county for damages. The trial resulted in a verdict and judgment in favor of the doctors, to reverse which the plaintiff below has filed here a petition in error.

1. The first assignment of error is that the verdict is not sustained by sufficient evidence. The undisputed facts in the case are that plaintiff's kneecap was fractured at Cordova, Neb. One Dr. Doty was immediately called, dressed the wound, and put the plaintiff's leg in a temporary splint; and he was then taken to Beaver Crossing, which appears to have been his home. That night Dr. Greedy was called to treat the plaintiff's wound. He applied adhesive plasters to the knee, put it in roller bandages and a fracture box, and continued to visit and treat the plaintiff. On the 7th of July the defendants, with Dr. Greedy, and at his request, called to see the plaintiff, and made an examination of the plaintiff's wound; and one of the defendants then expressed the opinion that a necessary, or at least a proper, method of treating the plaintiff's wound, would be to make incisions in the skin and flesh of the knee, and wire the two pieces of the fractured kneecap together with silver wire. On the 10th day of July the defendants, in company with Dr. Greedy and a man named Evans, visited the plaintiff, and performed an operation upon his knee. They subjected the plaintiff to the influence of chloroform, made incisions in the skin and flesh covering the kneecap, exposed the same, drilled holes in the two fractured parts thereof, and wired them together with a silver wire. While one of the defendants was drilling a hole in one of the pieces of the kneecap, a movement of the plaintiff's leg occurred, causing the drill to break, leaving the point thereof in the bone. The broken point of this drill was by the defendants left imbedded in the kneecap. The defendants visited the plaintiff on July 14th, 22d, 25th, and on the 1st of August, but did not return after the last date. The plaintiff, however, did not recover until after the spring of 1891, at which time other surgeons performed another operation upon his knee. At the time this suit was brought, and at the time the trial occurred, the muscles of the plaintiff's leg and thigh were shrunken, and his knee joint enlarged and stiff. In other words, the plaintiff appears to be permanently injured, and his claim in this suit is that his permanent injury is the result of the negligent treatment given his wound by the defendants.

Under the assignment that the verdict is not sustained by sufficient evidence, a specific argument of the plaintiff is that, in consideration of a certain reward promised the defendants, they undertook and promised, not only to treat his fractured knee, but to effect a perfect cure thereof, so that he should have as healthy a limb, and as perfect use thereof, as he had prior to the time the injury occurred. The evidence on the part of the plaintiff tends to sustain his contention. The defendants, however, deny that they entered into any contract with the plaintiff, in and by which they guarantied to cure him; and the evidence on their behalf tends to support their theory. We cannot say that the jury's finding that the defendants did not undertake or agree to effect a permanent and complete cure of the plaintiff is unsupported by the evidence.

Another special argument of the plaintiff, under the assignment being considered, is that the defendants undertook and promised the plaintiff, after performing the operation upon his knee on the 10th of July, to continue to visit him and treat him until he should recover. The evidence on behalf of the plaintiff tends to sustain this contention. The defendants, however, deny that they made such an agreement, and allege that they made no agreement whatever with the plaintiff as to how often or how long they should visit and treat him, but that they did visit him, in connection with Dr. Greedy, and examined and treated his wound, until and including the 1st day of August, at which time they informed the plaintiff that in their opinion he was doing well, and their further visits would be unnecessary, and that they should not return again unless he or Dr. Greedy should request them, and that they were never requested to visit the plaintiff after said 1st day of August. The evidence of the defendants tends to support their contention in this respect, and, again, we cannot say that the jury's finding in favor of the defendants on this question is not supported by sufficient evidence.

As a part of the assignment under consideration, a third special argument of the plaintiff is that the defendants were guilty of negligence in adopting and pursuing the method of wiring the plaintiff's fractured kneecap together with silver wire, and the finding of the jury that the defendants were not guilty of negligence in adopting and pursuing the method they did lacks evidence to support it. On behalf of the plaintiff, numerous physicians and surgeons testified, as experts, that the method adopted and pursued by the defendants in setting the plaintiff's kneecap (that is, by wiring the fractured portions together) was not the proper method. On the other hand, the defendants themselves, and the physicians and surgeons called as experts in their behalf, testified that the method adopted and pursued by the defendants in treating the plaintiff's kneecap was a proper and a safe one. In other words, as is usual, the experts for the plaintiff agreed with his contention, and the experts on behalf of the defendants agreed with their contention. Whether the method adopted and pursued by the defendants was the proper one, was a question of fact for the jury; and they, upon conflicting evidence, have acquitted the defendants of negligence in adopting and pursuing the method they did, and we cannot say that they reached the wrong conclusion.

Another special argument is that the finding of the jury that the defendants were not guilty of negligence in leaving the broken drill in the bone lacks evidence to support it. Whether leaving this broken drill in the bone was negligence, or not, was likewise a question of fact for the jury, and the evidence of the surgeons and experts who testified for the plaintiff tends to show that leaving this broken drill in the bone was not good surgery. The evidence of the defendants on the point under consideration was, in substance, that after the operation of wiring the fractured kneecap was completed the plaintiff was suffering greatly; that the temperature of his body was abnormally high, and his pulse abnormally rapid,...