Dawson v. Allen

Mr. Presiding Justice Fitch delivered the opinion of the court. 3. Dentists, § 3*—instruction as to presumption of 'negligence. In an action for an injury to plaintiff’s foot alleged to have been sustained while under the care of a dentist, an instruction to the jury that if they believe from the evidence that plaintiff was hurt without fault on her part while she was under the control of defendant and her injury was of such a nature as would not happen in the ordinary course of things under such circumstances, then the jury have a right to presume that the injury was caused by defendant’s negligence and that the burden is upon the defendant to overcome that presumption, held erroneous since it is necessary to show that the injury is of such a character that it would not ordinarily occur if due care is used. 4. Dentists, § 3*—when doctrine of res ipsa loquitur applies. The doctrine of res ipsa loquitur can only be properly invoked where there is some evidence tending to prove that an injury complained of was caused by something under the defendant’s con: trol. 5. ' Dentists, § 3*—necessity of control of cause of injury. Where it was admitted that there was no evidence from which to deduce any theory of what actually caused an injury to plaintiff’s foot alleged to have been sustained, it was erroneous for the court to assume by its instructions that the injury was caused by something under defendant’s control while plaintiff was under his care for the purpose of extracting a tooth, since it might have been caused by pure accident or by something not at all within the control of the dentist, the cause of the injury being a question of fact and one of the main issues in the case. 6. Dentists, § 3*—necessity of control of cause of injury before presumption of negligence may arise. In an action for injury to plaintiff’s foot while she was in a dental chair, remarks of counsel voicing the theory that if she was hurt without fault on her part while under the care of defendant, and her injury was of such a nature as would not happen in the ordinary course of things under such circumstances, the jury had a right to presume that the injury was caused by defendant’s negligence, placing the burden on defendant to overcome the presumption of negligence, held prejudicially erroneous in assuming the cause was within defendant’s control.