Davis v. Spicer

Hall, J. This was an action for damages for malpractice, in the unskilfulness with which defendant set and treated plaintiff’s leg. The plaintiff’s evidence tended to prove that the broken limb was not set at all by the defendant — that is, that the broken bones were not placed in proper apposition. The said evidence tended very strongly to prove that the defendant, in attempting to set the broken leg, had one Downing, who was, among others, present at the operation, pull out the leg to reduce the fracture, and that the defendant, instead of measuring the broken leg, had one Rankin sight along it, in order to ascertain whether it was of the proper length, and that Rankin, in response to a question by the defendant as to the length of the leg, said that it was short by three-fourths of an inch, and that the defendant remarked, “all right.” Said evidence also tended to prove that if the broken leg was short, as stated by Rankin, it was not set. If the leg was not then set, it was never set, because the defendant made no other attempt to reduce the fracture. Said evidence •showed that plaintiff’s broken leg was short, by from two and three-fourths to three inches, and that such condition was permanent. The evidence also showed that, in a case like the plaintiff’s, there is always shortening of the broken leg. The average shortening, under proper treatment, was variously stated to be from three-fourths of an inch to one and one-half-inches. The defendant’s evidence tended to show that he properly set the broken leg, and properly treated it. His evidence also tended to prove that the plaintiff had been guilty of carelessness and negligence, and of a failure to comply with the defendant’s directions. As to this, however, the plaintiff’s evidence tended to prove .the contrary. We will not weigh the evidence. We cannot say, [301] after an examination of all the evidence, that the verdict in favor of the plaintiff was the result of passion and prejudice. The objection to the instructions given by the court requiring the jury to find that the plaintiff’s negligence directly contributed to his injury, before they could, on that ground, find for the defendant, is not well made. The counsel for defendant contends that the instruction should have used the word “proximately” instead of “directly.” “ Proximately ” is the technical and more accurate word, and is used by text-writers, and in the opinions of courts generally, where the effect of the plaintiff’s contributory negligence is scientifically discussed, but, in this connection, the two words are synonymous. In fact, the word “directly” is the better word in an instruction, since it conveys to the minds of the jury a clearer meaning of the court’s charge, and is the word ordinarily used in instructions, as is shown by the long list of cases cited in plaintiff’s brief. The court gave, for the defendant, all the instructions asked by him, and only modified one of such, instructions, by inserting the word “directly” in the instruction, so as to require the contributory negligence of plaintiff to have directly contributed to his injury, in order to relieve the defendant. The case was fairly submitted to the jury. The evidence authorized the verdict. Judgment affirmed. All concur.