Negligence must be affirmatively proved (Sward v. Megan,284 Mich. 421; Pulford v. Mouw, 279 Mich. 376; Fleegar v. ConsumersPower Co., 262 Mich. 537), and the burden of such proof rests upon the party alleging it. Shadduck v. Railway Co., 179 Mich. 433.
In his opinion, Justice BUSHNELL considers a new trial necessary because of an alleged dispute of fact as to whether or not the electric cord was attached to the electric heating pad under the baby when the latter was examined by the defendant, which cord, if attached, would give rise to the question of whether or not defendant was guilty of a negligent omission of duty in failing to observe the cord and pad, recognize the danger and remove it.
Three witnesses, the plaintiff, the plaintiff's mother-in-law, Mrs. Garlinger, and the defendant, testified in regard to the heating pad. The plaintiff testified that the child was brought out of the delivery room at 5:35 p. m. and laid in an overstuffed *Page 557 chair in the reception room, and that an electric heating pad, covered with a rayon blanket, was between the baby and the cushion of the chair. Plaintiff further testified that he saw the baby placed on the pad and then left the hospital within a short time to make a telephone call. Plaintiff returned at 6 p.m. and stayed until 6:20 or 6:30 p. m. at which time he went home.
Mrs. Garlinger testified that she saw the baby brought from the delivery room, saw the electric pad placed upon the chair and saw the baby, wrapped in a rayon bedspread, laid thereon. She then went into the delivery room while Mrs. Scoby stayed with the baby. The witness returned to the reception room in about 15 or 20 minutes and noticed that the baby was still lying on the pad. The doctor was not present. The witness then went to another part of the hospital and returned 15 minutes later as she was leaving the hospital with the plaintiff between 6 and 6:30 p. m. On each of the three occasions mentioned the witness testified that the child was on the pad, and that the pad was attached to the cord by Mrs. Scoby and plaintiff.
The defendant testified that about half an hour after delivery of the baby he went with Mrs. Scoby to examine the child and put silver nitrate in its eyes. He carefully examined the infant and found it to be normal. He had to bend over and hold its eyes open while inserting the drops. Nevertheless, his testimony is that he did not see the electric pad or the cord that ran to the appliance. He said that if the cord arrangement, as described by plaintiff, had been there he would have seen it and would have removed the pad.
From this testimony it does not appear that either the plaintiff or plaintiff's mother-in-law were present in the reception room at the time the defendant *Page 558 examined the baby. It cannot be said, therefore, that there was a conflict of testimony as to the presence of the cord attached to the pad under the baby when it was being examined by the defendant.
By plaintiff's own testimony the pad itself was not visible because of the blanket which covered it, but only the cord running from the pad to the ceiling fixture could be seen. It is significant, therefore, that both plaintiff and Mrs. Garlinger were in the room with the baby only at intervals of 15 minutes or more and that neither was present when the doctor examined the baby. It is quite possible that during one of such intervals Mrs. Scoby disconnected the electric cord prior to the doctor's examination and reconnected it afterwards. However, this is just speculation, and is exactly the same type of speculation that a jury would have to indulge in if the question of defendant's alleged negligence had been put to it under the existing testimony.
The situation presented is unlike a case where two or more persons give conflicting testimony concerning something which they witnessed at the same time. That, of course, would present a question of fact for the jury, to be decided according to the weight of the testimony and the credibility to be given the respective witnesses. Davis v. Belmont Creamery Co., 281 Mich. 165.
It is true that this court has held that a jury may draw legitimate inferences from established facts, and that to do so is not considered to be mere speculation or guesswork, nor the adoption of the res ipsa loquitur doctrine which is not favored in this State. Heppenstall Steel Co. v. Railway Co., 242 Mich. 464; Faustman v. Hewitt, 274 Mich. 458; Fish v.Railway, 275 Mich. 718; Trent v. Pontiac Transportation Co.,Inc., 281 Mich. 586 (2 N.C.C.A. [N. S.] 485). This *Page 559 rule, as the above cases show, is applied most commonly in accident cases where the physical evidence points so clearly to the negligence of one of the parties as to establish aprima facie case.
In the instant case, the plaintiff has failed to establish proof to the effect that the heating pad was present under the baby and connected at the time defendant made his examination. A jury, therefore, could only surmise this fact and upon that conjectural ground impose liability upon defendant. A jury may draw reasonable inferences from the established facts, but it is not to be permitted to speculate as to the facts themselves.Butrick v. Snyder, 236 Mich. 300; Paull v. McBride, 273 Mich. 661 . Plaintiff failed to meet the burden of proof and make out a sufficient case for the consideration of the jury.
The opinion relied upon as authority for remanding this case for a new trial, Rodgers v. Canfield, 272 Mich. 562, is inapplicable. That was a malpractice suit against two doctors who acted jointly in treating the plaintiff. It was held that each doctor, while serving with the other, was answerable for his own conduct and also for the negligent acts of the other which he observed or in the exercise of reasonable vigilance should have observed. It was further said, however, that, "For their joint acts of commission or omission both defendants were liable, but any such act by one, in the absence of the other, unless concerted, could not be attributed to the non-participant."
Dr. Bull did not instruct Mrs. Scoby to place the infant upon an electric pad. His only instruction was to keep the baby warm. The record shows that the pad was placed under the child by Mrs. Scoby while the defendant was attending the mother in the delivery room. *Page 560
In the case of Wright v. Conway, 34 Wyo. 1 (241 P. 369,242 Pac. 1107), the plaintiff was burned by the application of hot irons or bottles, and this fact, among others, was alleged as negligence on the part of the defendant doctor in a malpractice suit. The court said:
"It does not appear that the defendant did anything more than to suggest or prescribe the hot applications. It is not shown that he applied them, or that he was present when they were applied. If applied by a nurse at the hospital, there is nothing to show that her relation to the defendant was such as to make him responsible for that action. She may have been employed by the plaintiff. Without further showing than that found in this testimony, the defendant would not be liable for the burns or blisters resulting from such hot appications."
In the present case, Mrs. Scoby was employed by the plaintiff and therefore Dr. Bull was not liable for unauthorized negligent acts performed by her out of his presence which he did not observe, or, in the exercise of reasonable vigilance, should have observed. Malkowski v. Graham, 169 Wis. 398 (172 N.W. 785, 4 A.L.R. 1524).
Reviewing the testimony, it cannot be said that plaintiff sustained the burden of proof in presenting evidence tending to prove that defendant in the exercise of reasonable vigilance should have observed the heating pad.
Mrs. Scoby, who was employed by plaintiff and who was present when the doctor examined the child, was not produced as a witness to testify as to whether or not the heating pad was actually connected at the time of defendant's examination.
Because the record presents no disputed testimony as to whether the heating pad was connected at the *Page 561 time of defendant's examination of the infant, and because the defendant, under the circumstances, was not legally responsible for the negligent acts of Mrs. Scoby committed out of his presence, the trial court was correct in directing a verdict for defendant.
The judgment is affirmed, with costs to defendant.
BUTZEL, C.J., and WIEST, POTTER, and McALLISTER, JJ., concurred with CHANDLER, J.
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