Wilmot v. Howard

The opinion of the court was delivered by Baihiett, J. In this action the plaintiff 'claims to recover damages for injury sustained by reason of the unskillful and negligent manner in which the defendant dressed, treated and attended the plaintiff’s fractured arm. A question is made as to the instructions given to the jury touching certain sayings of the plaintiff’s father. Those sayings had been treated by counsel on both sides, in the argument to the jury, as bearing only on the credit of said father as a witness testifying for the plaintiff to material facts in the case. The court, in the charge, had given instructions conformable to the views taken by counsel in the argument. No prior request had been made to the court on this subject. After the charge had been given, the defendants counsel requested the court to instruct the jury that said sayings of the father were to be regarded and considered as evidence in chief. These facts are certified to this court for the purpose of hav — 455 — ing its decide whether the defendant was entitled to exception on this point. In the opinion of this court the defendant was not entitled to exception. If the defendant claimed any special force, or character, or application, for this evidence, he should have made it known before the close of the argument. On the general subject we adhere to the rule pronounced in Vaughan v. Porter, 16 Vt. 266, and reasserted in Cady v. Owen, by Poland, Ch. J., 34 Vt. 598. But the present case goes beyond those cited, and asks the court, in favor of the party, to repudiate the character and application which he has claimed for the evidence in his argument to the jury, upon which character and application the counsel for the other side, concurring with his opponent, has also argued the case to the jury, and requires the court to put the evidence to the jury, in a new character, in a new application, and to lead to entirely different results from that claimed for it in the argument. This certainly is a novelty in practice. It is understood to be the object of an argument, among other things, to apprise the court of the views and reasons of counsel as to the evidence, as it stands related to the legal propositions involved in the case, and to apprise the opposing counsel of the same things and enable them to present their views and reasons to meet those of the other side ; and still further is it an important and leading object of the argument to bring to the consideration of the jury the various elements and features of the evidence as bearing upon the various propositions of fact which the jury are to pass upon, and aid them in arriving at just results from the evidence as to those propositions. The course proposed and pursued by the defendant’s counsel in this case would thwart all these purposes and objects ; and not only so, but would directly tend to embarrass the court, mislead opposing counsel, and confuse and confound the jury. We therefore put our decision of this point solely on the ground that the defendant was not entitled to the exception, without considering whether the view embodied in his unseasonable request was correct or not. We think the court did not err in disregarding the request. The point made in the exceptions upon the part of the charge that — 456 — related to the skill required of a person holding himself out and undertaking to practice as a surgeon, we have no occasion to take time with, as it is not really insisted on and urged in this court. We remark, however, that, taken in its- relation to the declaration and the evidence, it would seem to be entirely proper, and as favorable as counsel could claim for their client, unless they would have him take refuge in the character of a quack from the consequences of his practice as a professed surgeon. The most important feature of the case is presented by the exception to the omission of the court to charge, “ that if the damage or injury to the plaintiff’s arm resulted in part from the mismanagement and negligence of those having the care and management of the plaintiff, that the plaintiff could not recover.” The court had given a full and satisfactory charge upon every other feature and theory of the defence, and, of course, had told the jury that, if the defendant had exercised the requisite skill, care and attention in dressing, and treating, and attending to the fracture, he would not be liable ; and, also, that if the damage or injury resulted wholly from the fault of those in charge of the plaintiff the defendant would not be liable. Upon the case as situated under these points and features of the charge, the request not complied with assumes, and was made upon the assumption, that the jury should find that the damage and injury was caused, in part, by the unskill-fulness and negligence of the defendant; and upon the assumption, that the defendant would he liable, unless the putting of that point to the jury in the terms of the request would shield him. Every other theory and ground of defence was made available to him by the charge as given, and he was found liable notwithstanding. The point therefore is this, whether, if the failure of the plaintiff to get a sound arm resulted, in any part, from the mismanagement and negligence of those having charge of him, the defendant would not be liable at all in this action. This question is to be considered and determined with reference to both the law and the evidence applicable to the point. It is to be noticed that, upon the evidence, there is no ground of pre-tence that any mismanagement or negligence had occurred prior to — 457 — the Friday after the original dressing, at which time the defendant was called in and examined the condition of the limb and of the patient. The evidence, and the respective claims of the parties, as to the agreement on that Friday about the plaintiff’s being seen by the defendant on the following Sunday, or Monday, or Tuesday, were submitted to the jury with satisfactory instructions. Hence the question really is, whether, upon the evidence, the defendant could be found liable in this action, even though the failure of the plaintiff to get a sound arm resulted, in part, from the mismanagement or negligence of those having charge of the plaintiff. If he could, then he was not entitled to have his request granted ; if he could not then it should have been granted. ' It seems to us quite clear, that, upon the evidence, the defendant might well have been held liable, even though the jury should have found that the damage to the arm resulted, in part, from the alleged mismanagement or negligence of those having charge of him. If the jury should have found, as they might on the evidence, that the improper manner in which the arm was dressed and kept till the Sunday after the accident had brought it into such condition, that the plaintiff must, inevitably have a defective arm, the defendant would be liable to action, even though it should be found that mismanagement or negligence in those having charge of the plaintiff may have aggravated the case, and rendered the ultimate condition of the arm worse than it otherwise would have been. The cause of action wo.uld have become perfected before the alleged mismanagement or negligence would have supervened. There is no pretence that the parents or attendants of the plaintiff had anything to do with the dressing of the arm. If the jury had found that that dressing was such, when continued according to the directions of the defendant, that it would produce a defective arm, and had that effect, then the right of action would have been perfected though the ultimate result might have been aggravated by mismanagement or negligence. In the cases supposed, such supervening mismanagement or negligence would bear only on the measure and amount of damages, — not on the right of action, — 458 — If the defendant would have been liable in either of the supposed eases, then, of course, he was not entitled to have his request granted. In this respect the case would stand, by analogy, upon the same ground as a common class of cases, particularly for recovery of damages caused by alleged defects in highways. The liability of the town is established, the injury proved, and the resulting effects become the subject of inquiry; whereupon the town claims, and endeavors to prove, that, owing to mismanagement or negligence in treating the injured party, the consequences have been aggravated. Such showing on the part of the town does not touch the cause and right of action, but only the measure and amount of damages. And here it may be well to remark, that this just illustrates and makes plain the distinction to be taken between the case before us, upon the precise point made by the exceptions, and all the cases-cited by the defendant’s counsel as applicable to it. In those cases the alleged negligence on the part of the plaintiff was simultaneous and co-operating with the alleged fault of the defendant, an element in the very transaction which constitutes the alleged cause of action. The contributory negligence on the part of the plaintiff, in all the cases, that has been held to preclude his right of recovery, has entered into the creation of the cause of action, and not merely supervened upon it, by way of aggravating the damaging results. These views leave this case to stand upon common principles by which a person is subjected to liability for the consequences of his wrongful acts and neglects, and, as the case is made up, it would seem that the defendant has had accorded to him every legitimate ground and means of defence. The exceptions state, “as to what the defendant’s counsel claimed as to the effect of mismanagement, negligence, or want of proper care and attention on the part of the plaintiff and those other than the defendant, having the care and management of him, the court charged the jury, as to this branch of the case, and its effect on the rights of the parties, and upon the damages, to the satisfaction of. the defendant, and so that no exception was taken, except the court did not charge that if the damage — 459 — or injury resulted, in part, from, tlie mismanagement and negligence of those having the care and management of the plaintiff, the plain-'tsff could not recover.” In the view we take of the case, we do not find occasion to go into any general discussion of the subject as it is involved in, or related to, the cases that have been cited. This case stands upon simple and familiar principles, in no respect in conflict with any of the decided cases, and directly sustained by some, so far as they stand upon concurring analogies. Robinson v. Cone, 22 Vt. 213 ; Burge v, Gardner, 19 .Conn. 507; Daley v. Norwich & Worcester R. R. Co., 26 Conn. 91. Judgment affirmed.