Hibbard v. Thompson , 109 Mass. 286 ( 1872 )

Chapman, C. J.

The plaintiff’s declaration contains two counts, one in tort and the other in contract. Each of them alleges in substance the employment of the defendant as a physician by the plaintiff, and ignorant and unskilful treatment of the plaintiff by him, whereby the plaintiff was put to great pain and suffering. There was evidence tending to show that the plaintiff’s own carelessness contributed to the injury; and the plaintiff requested the court to instruct the jury that this is a case where the doctrine of contributory negligence does not apply, and the physician is liable for any results growing out of the want of ordinary skill and care on his part. The first exception taken is to the refusal of the judge to rule as requested.

In Smith v. Smith, 2 Pick. 621, the court say that the action cannot be maintained for negligence, unless the plaintiff can show that he used ordinary care, for without that it is by no means certain that he himself was not the cause of his own injury. In Eaton v. Boston & Lowell Railroad Co. 11 Allen, 500, it was decided that if the plaintiff, in an action occasioned by the carelessness of a railroad company, elects to sue in contract or in tort, the rule of duty is the same in either action. So here the rule of duty and of damages would be the same upon either of the younts. We think the court rightly refused the instruction asked.

The instructions which were actually given are also excepted to. But they seem to us to contain a careful and accurate discrimination between the different aspects of the case as the jury might find the facts to be. They were first instructed that, “ if Zt be impossible to separate the injury occasioned by the neglect of the plaintiff from that occasioned by the neglect of the defendant, the plaintiff cannot recover; ” but the judge added: “ I however they can be separated, for such injury as the plaintiff may show thus proceeded solely from the want of ordinary skill or ordinary care of the defendant he may recover.” The first part states the ordinary rule as to the negligence of the plaintiff; the second states the proper limitation of the rule. It is an important limitation; for a physician, may be called to prescribe for cases which originated in the carelessness of the patient and though such carelessness would remotely contribute to the injury sued for, it would not relieve the physician from liability for his distinct negligence, and the separate injury occasioned thereby. The patient may also, while he is under treatment, injure himselb by his own carelessness ; yet he may recover of the physician il he carelessly or unskilfully treats him afterwards, and thus does him a distinct injury. In such cases, the plaintiff’s fault does not directly contribute to produce the injury sued for.

The remaining instructions consist of an application of these principles to the present case, and are so clearly expressed that they could not have misled the jury.

Exceptions overruled.