Bennison v. Walbank

Yanderburgh, J.1 The plaintiff recovered a verdict for damages against the defendants, physicians and surgeons, in an action for alleged malpractice in amputating plaintiff’s arm, which had been injured by being accidentally caught in the gearing of a mill. The injuries were necessarily serious, but the controversy between the parties arises upon the question whether they were of such a character as to warrant a resort to amputation. The only point insisted on in this court is that the verdict is not justified by the evidence. Immediately upon the happening of the accident, the defendants were summoned, and proceeded to strip and examine the wounded limb. And at the outset we find a direct conflict between the testimony of the plaintiff and his witnesses and that of the defendants in respect to the nature and extent of the injuries suffered by him, and the condition of the arm. Indeed, so different is the state of the case as presented by these witnesses, that one of defendants- admitted in his testimony before the jury “that if the wound was as testified to by the plaintiff and his witnesses, the arm [314] would certainly not have been amputated, at that time at least.”’ The plaintiff also illustrated to the jury, by the aid of- diagrams which are not returned to this court, the manner in which the accident occurred, and in what position the arm was when hurt. The record does not present the case as clearly as it appeared to the jury, and we are unable to say, upon the evidence as returned, that it was impossible, or improbable, even, that the wounds inflicted were as stated by the plaintiff and his witnesses. It was for the jury to ascertain the facts touching this matter, as a basis for the exercise of their judgment upon the question whether the defendants exercised reasonable care and skill in the premises, and to enable them to understand and apply the evidence of the expert witnesses. One of the latter, called by the plaintiff, testifies that, “assuming the testimony of the plaintiff and his witnesses to be correct, a surgeon, in the exercise of reasonable or ordinary skill, diligence, and care, would not amputate an arm under such circumstances, — it would be bad surgery.” These witnesses also differ as to the conditions under which amputation should be resorted to in such cases. It was for the jury to determine between them; and, in comparing and weighing the opinions of such witnesses upon a given state of facts, the jury must necessarily consider the relative value of the testimony of the different witnesses, having reference to their knowledge and experience, their freedom from bias, and the reasons they are able to give for their conclusions. We have carefully examined the record in this case, and find no good ground for reversing the order of the trial court refusing a new trial. Order affirmed. Footnotes [1] Mitchell, J., was absent, and took no part in tbis case.