Fowler v. Sergeant

The opinion of the court was delivered by Lowrie, J. — There being no definite measure of damages in such cases as these, it is usual to inform the jury of the circumstances of the respective parties, and we see no error in the mode of doing it in this case. It was right, also, to allow the plaintiff to exhibit the injured limb to the jury, because a sight is always better than a description, and the terms imposed upon the plaintiff by the court, were for the benefit of the defendant, of which he could not complain, unless he had afterwards asked for more and been refused. Why the defendant should not compensate the plaintiff for the sufferings of a fortnight’s unskilful treatment, it is impossible for us to find any reason, and we must say that the court was right; and if the court could not understand why such treatment should continue so long, we cannot say that they were in error in saying so, especially when they left the question to the jury. The neglect to produce evidence that is known to be in one’s power, is necessarily suspicious, and thus evidence against him ; and it was on this principle that the court allowed the counsel to comment on the defendant’s failure to call his son, who aided him in his attendance on the case, and we do not see that this was erroneous. [359] The above remarks relate to the defendant’s exceptions. But the plaintiff has some likewise, and we proceed to consider them. This we can do very briefly, for there is really but one thought in them all, as there was but one thought variously expressed in the different parts of the charge complained of. That thought may be fully expressed thus: — A physician or surgeon is not chargeable for ignorance of a case if he prescribes for it rightly. Understanding it thus, it is impossible for us to say that the instructions were erroneous. Judgment affirmed and record remitted.