Woody v. Keller, 73.

• Decision Date: 03 February 1930
• Docket Number: No. 73.,73.
• Parties: WOODY et al. v. KELLER.
• Court: New Jersey Supreme Court

148 A. 624

WOODY et al.

v. KELLER.

No. 73.

Court of Errors and Appeals of New Jersey.

Feb. 3, 1930.

(Syllabus by the Court.)

A physician undertakes, in the practice of his profession, that he is possessed of that degree of knowledge and skill therein which usually pertains to other members of his profession. Ely v. Wilbur, 49 N. J. Law, 685, 10 A. 358, 441, 60 Am. Rep. 668; Smith v. Corrigan, 100 N. J. Law, 267, 126 A. 680; Lolii v. Gray, 101 N. J. Law, 337, 128 A. 256.

For a plaintiff to prevail, there must be proof of negligence under the foregoing rule. Mere proof of error or mistake is not sufficient.

(Additional Syllabus by Editorial Staff.)

Appeal from Circuit Court, Passaic County.

Action by Florence Woody and others against Franklin J. Keller. Judgment of nonsuit, and plaintiffs appeal. Affirmed.

Peter J. McGinnis, of Paterson, for appellants.

Edward M. & Runyon Colie, of Newark, for respondent.

CAMPBELL, J. This is an action for malpractice of a physician in the setting and care of a fractured arm. The defendant first put the injured member in splints, and then directed the taking of X-rays, which disclosed a fracture. Thereupon the injured part was put in a plaster cast for 36 days. When the cast was removed, a deformity existed. The only testimony claimed to show negligence or lack of proper care was that of the plaintiff, in which she said the defendant made the following statements when the cast was removed and the result was disclosed, viz.:

"'Oh, well, don't worry,' he says, 'it will come along.' He said: 'We all make mistakes. It will come along all right' He said: 'I wish it was that way.' Just kept talking that way. So he said: 'Well, of course, it is _all—we all make mistakes. We are human. I realize it is my fault, but don't worry. I will make it as straight as a stick in a little while'—a week or ten days, I believe, is the way he always expressed it to me."

This is all that appeared at the conclusion of the plaintiff's case. There was no professional or expert testimony upon the question of negligence. The trial court directed a nonsuit, and from the judgment entered thereon the plaintiffs below appeal, and urge that the statements of the defendant, above recited, are admissions of negligence upon his part, proper and sufficient to have presented a jury question, and therefore the nonsuit was error.

We conclude that this is not so. In Ely V. Wilbur, 49 N. J. Law, 685, 10 A. 358, 441, 60 Am. Rep. 668, this court held...