Wright v. Conway

ON PETITION FOR REHEARING. A petition for rehearing has been filed in this case. Among other things it is asserted and argued that a certain portion of the evidence was overlooked in the opinion, as well as some citation of authorities by the plaintiff in error. Nothing of that kind was overlooked in the court's consideration of the case. The item of evidence referred to was not recited or specifically referred to in the opinion for the reason that it was not believed by the court to have any effect in the determination of the case, and its inclusion in the recitation of the facts would merely have added unnecessarily to the length of the opinion. Indeed, as originally prepared the opinion contained a statement thereof which was thereafter omitted for the reason stated. We will take up that matter later.

It is, perhaps, true that all of the cases cited in the brief of plaintiff in error were not mentioned in the opinion, but we shall not take the time to make a comparison between that brief and the opinion to ascertain whether that is indeed the fact or not. Very many cases were examined by the court, whether cited by counsel or not, and several were not specifically mentioned in the opinion. The fact is, however, that the case received the most thorough consideration by the court. One authority which it is now said by counsel was cited in the brief and not in the opinion is Howitt v. Cartwright, 128 Wash. 343, 222 P. 496. But that case was cited in the opinion, though not upon the proposition for which it was cited in the brief. And it was thoroughly read and considered by the court.

Objection is taken to our stated conclusion that it was the duty of the plaintiff below, plaintiff in error here, to have shown the availability of an X-ray apparatus or machine in order to succeed in its charge that the defendant was negligent in failing to use it for the purpose of discovering whether or not the fragments of the bone were in apposition, or otherwise as an aid to diagnosis and treatment. And the case just mentioned, Howitt v. Cartwright, 128 Wash. 343, 222 P. 496, is supposed to have been overlooked by the court upon the question of negligence in the failure to use X-ray. It appeared in that case that such a machine was available, and had indeed been used at the beginning of the examination and treatment. And the charge of negligence was that the defendant had failed to use it sufficiently often. It was not therefore deemed to support the theory of plaintiff in this case upon the facts.

It is now argued that the point of the necessity of proof by plaintiff of the availability of an X-ray apparatus or machine was not discussed in the brief or argument of either party, and that plaintiff should, on that ground alone, be granted a rehearing in order that it may be fully presented to the court. Such an argument would no doubt at times be persuasive, but in this case we see no ground for its application. A most thorough investigation of the authorities speaking upon the question of the use of the X-ray was made and we cannot apprehend that further argument would avail to convince the court that the matter of negligence in failing to use the X-ray should have been submitted to the jury, notwithstanding the failure to prove that it was available to the defendant under the circumstances. Beyond that, however, the proof in support of the charge of negligence was found to have been insufficient upon another ground, viz: that its use would not have demonstrated the truth of the contention of the plaintiff that the fragments of the broken femur bone were not in apposition, since the evidence shown by an X-ray picture made only a day before the discharge of the defendant from the case, as explained by the defendant to the wife of the plaintiff, as she testified, showed the bones to have been then at least in partial apposition.

The point is now made also that since an X-ray was found to be available and used four weeks after the diagnosis and commencement of the treatment, it would be a fair inference that the same instrument was available at all times before that, including the time of the diagnosis and beginning of the treatment. But we think that the case should not be disposed of upon any such ground, especially in view of the fact that if such a machine was available the plaintiff was in a situation at the time of the trial to have shown the fact, and, indeed, it appears that the matter was in the mind of counsel when Dr. Mylar, the expert witness called by him, was upon the stand, for, as stated in the former opinion, the question as to the availability of an X-ray machine was asked of that witness upon redirect examination, though he was not allowed to answer because of an objection that the question was not proper upon redirect examination, notwithstanding which fact the witness was not recalled for further examination. But in view of the nature of the subject we are clearly of the opinion that the suggested inference of availability during the preceding four weeks would not be the law.

While it is stated and recognized as a familiar general rule (22 C.J. 86) that proof of the existence at a particular time of a fact of a continuous nature gives rise to an inference or presumption, within logical limits, that it existed at a subsequent time, a rule that proof of the existence of apresent condition raises an inference or presumption that it existed at a prior time is not so generally accepted. Yet there are cases in which the prior existence of such a condition may be inferred or presumed, depending upon the subject (id. 92). We find a fair statement of the principle, as to both prior and subsequent existence, in Washington c. Ry. Co. v. Vaughan,111 Va. 785, 69 S.E. 1035. The case there reported was an action for damages for personal injuries suffered by a passenger on defendant's line of electric railway, and one of the apparently disputed facts was whether the electric and oil headlights of the car were burning at the time of the accident. And the question arose whether it was admissible to show, by witnesses who saw the car about fifteen minutes after the accident, that such headlights were then burning. The court said:

"Where the existence of a thing at a given time is not shown, its prior and subsequent existence is, according to human experience, some indication of its probable existence at a later or earlier period. The degree of probability that a thing was in existence at a given time, from its existence at a subsequent period, will depend upon the likelihood of some intervening circumstance having occurred and been the true origin. 1 Wigmore on Ev., Sec. 437."

And with reference to the point in that case the court said that whether the length of time which had elapsed and the distance traveled was too great, was for the trial court, in the exercise of a reasonable discretion, and the appellate court could not say that it had not properly exercised its discretion in rejecting the offered evidence. In the section cited from Wigmore on Evidence, that author says:

"When the existence of an object, condition, quality, or tendency at a given time is unshown, the prior existence of it is in human experience some indication of its probable presence or continuance at a later period. The degree of probability of its continuance depends upon the chances of intervening circumstances having occurred to bring the existence to an end. The possibility of such circumstances will depend almost entirely on the nature of the specific thing whose existence is not shown and the particular circumstances affecting it in the case in hand. That a soap-bubble was in existence half-an-hour ago affords no inference at all that it is in existence now; that Mt. Everett was in existence ten years ago is strong evidence that it exists yet; whether the fact of a tree's existence a year ago will indicate its continued existence today will vary according to the nature of the tree and the conditions of life in the region. So far, then, as the interval of time is concerned, no fixed rule can be laid down; the nature of the thing and the circumstances of the particular case must control. Similar considerations affect the use of subsequent existence as evidence of the existence at the time in issue. Here the disturbing contingency is that some circumstance operating in the interval may have been the source of the subsequent existence, and the propriety of the inference will depend on the likelihood of such intervening circumstance having occurred and to have been the true origin. On arriving at New York it can hardly be inferred that the steamer at the next dock has been there for a week, but it may usually be inferred that the dock has been there for some years; * * * Here, as with prior indications, theinterval of time to which any inference will be allowable must depend on the nature of the thing and the circumstances of the particular case. * * * That no fixed rule can be prescribed as to the time or the conditions within which a prior or subsequent existence is evidential, is sufficiently illustrated by the precedents from which it is impossible (and rightly so) to draw a general rule. * * * The matter should be left entirely to the trial court's discretion."

It was held in Barker v. Chicago, I. L. Ry. Co., 51 Ind. App. 669,99 N.E. 135, to be a reasonable inference that, because a switch was open at the time of an accident, it was open some thirty or sixty seconds before. The court in that case in addition to quoting from Wigmore and citing cases, quoted also the following from Chamberlayne on Evidence, Sec. 1030:

"To prove the existence of a fact or a continuous set of facts, is often in itself practically impossible. The most which can be done is to show its existence at a previous or subsequent period, and ask the tribunal to draw from this proof an inference that it existed at the time in question. The established rule is that the court will infer that a particular fact or set of facts continues to exist as long as such facts usually, as a matter of experience, have been found to exist."

With reference to the subject in the case at bar, we think it cannot be said to have been practically impossible for the plaintiff to show whether or not an X-ray apparatus was available for the defendant's use prior to the time when it was used. Hence the reason for the application of such a rule of inference or presumption as now contended for is absent here. The fact of availability, if it existed, might have been established, and seemingly without difficulty, leaving no reasonable ground for the application of the rule of inference with respect to the subject under consideration.

To have thrown the burden upon the defendant of showing that he could not secure an X-ray at the time when it was charged to have been negligence not to use it, would have placed upon him the burden of proving that he was not negligent. And that is not the rule in cases of alleged malpractice. Nor do we think we would be justified in holding, without evidence, that in communities like Cheyenne, such instruments were so commonly owned and employed by physicians as to justify an inference of availability on that ground alone; especially in view of the testimony that defendant said, when first interrogated about an X-ray, that he could not get a machine and could not take the patient to one. However, as already indicated herein, as well as stated in the former opinion, in addition to the absence of proof of negligence in the failure to use X-ray, and in other respects, there was also insufficiency of proof of any casual connection between any such failure as may have been claimed to exist and the subsequent condition for which damages were claimed in this action.

The evidence above adverted to as supposed to have been overlooked by the court when disposing of the cause by the former opinion was the testimony of plaintiff's wife and Dr. Mylar, the expert witness, with reference to the plaintiff's slipping down in the bed occasionally while at the hospital in Cheyenne, and the temporary lifting of the weight for the purpose of readjusting him in proper position. The fact was referred to in the former opinion that the foot of the bed was raised at the time of the first treatment and the adjustment of the Buck's extension to plaintiff's leg, a fact which we now mention because of Dr. Mylar's testimony, now to be referred to in connection with the testimony of Mrs. Wright. Mrs. Wright was asked upon her direct examination to state what she knew about the plaintiff's slipping down in the bed while he was in the hospital at Cheyenne. Her answer included a conclusion and a partial mis-statement, though clearly not intended as such. The direct answer to the question was "Well, he had no braces or anything to hold him in the bed, and naturally, a heavy weight on one leg would pull him down, and he kind of slid down in bed, and his foot would press against the foot of the bed, and he would have a very hard time getting up in bed." That he had no braces to hold him in bed would seem to indicate some thought of lack of attention, though we doubt that that was intended. And that the heavy weight on his leg would pull him down, notwithstanding that the foot of the bed was raised, and would be the cause of his slipping would seem to be a mere conclusion on the part of the witness, though perhaps not necessarily untrue in fact. She then testified that her husband asked Dr. Conway what he should do about keeping up in bed, and the doctor told a couple of nurses who were in the room that it would not hurt to lift the weight just a trifle and help him slide up in bed. Asked whether she had seen the weight lifted for that purpose, and if so what she had observed when the weight was lifted, she testified that she saw the weight lifted, and that the effect was the same as if you stretched a piece of elastic; that when the weight was lifted, the leg would kind of draw back, and that when the weight was let down it would give — "stretch out;" that she saw that happen "probably several times." Upon cross examination she was asked, in that connection, "then the leg must have given a whole lot when it was taken off entirely," referring no doubt to the time and manner of the patient's removal mentioned in the former opinion. To which she answered "Yes, it did." That was all of her testimony upon that matter.

Dr. Mylar was asked whether loosening the weight on the extension and pulling the patient back into bed would be proper practice and he answered that it would make considerable difference whether it was temporary lifting or permanent relief on the extension; and upon being advised that temporary lifting was meant, he testified: "A temporary lifting would be quite all right, to adjust the patient in bed." He was then asked whether, if the leg was observed to contract upon the lifting of the weight, and to expand when it was lowered, that would indicate whether or not the bones were in apposition. His answer was that "if the bones were in proper apposition, there would be no, as you describe, shortening of this limb upon temporary reduction of the extension, whatever it might be." He was then asked whether he would recommend lifting the weight without splints on the leg or without plaster casts or some other method of procuring immobility. And he testified that at the end of ten days it would make very little difference, if there was proper approximation of the ends of the bones to raise the weights for a few minutes, "it would not hurt anything." Then in answer to the question at what time it would make a difference, he replied that with proper supports on the sides, and with proper reduction, it would make very little difference at any time; "that is, for temporary adjustment of the patient." Asked what the physician should do to prevent the patient from slipping down the bed, he answered that the usual procedure is something like raising the foot of the bed to counteract the weight pulling upon the foot, or fastening the patient some way to the head of the bed by a sheet.

The said procedure for readjusting the patient in the bed advised by the defendant as testified to by Mrs. Wright is thus very clearly shown by Dr. Mylar's testimony not to have been in any way improper. Nor was that advised procedure charged in the case as one of the grounds of negligence. But it is contended that in view of Dr. Mylar's testimony that there would be no shortening of the limb "as described" if the bones were in proper apposition, that this would have permitted a fair inference that the bones were not in apposition at those times, and required the submission of the case to the jury. We cannot assent to that view. In the first place, the evidence of Mrs. Wright was not sufficiently definite to have given the jury a clear understanding of the situation to render any conclusion upon it to have been otherwise than a mere guess or conjecture. Guess-work cannot be substituted for evidence or inference, for "an inference is the conclusion drawn on reason from premises established by proof. In a sense, it is the thing proved. Guess-work is not." Whitehouse v. Bolster, 95 Me. 458, 50 A 240. More than that, the evidence in the case with reference to the result of the X-ray picture taken just before the discharge of the defendant and the removal of the plaintiff to Laramie from the hospital at Cheyenne must be accepted, as stated in the former opinion, as showing that the bones were not entirely out of apposition, even at that time. The time of these various occasions when Mrs. Wright noticed the temporary lifting of the weight and the drawing back and expanding of the leg is not stated, nor anything which in our opinion could be regarded as more than the ordinary contraction of the muscles, which, according to the testimony of Dr. Turner, are in a constant state of contraction. There may have been a possibility, or even a probability, that such movement of the leg upon the occasions Mrs. Wright mentioned might indicate that the bones were not in apposition or at least not completely so. But an inference cannot be based upon a mere possibility or probability. It can only be based upon a fact proved, or something known to be true. Seavey v. Laughlin, 98 Me. 517,57 A. 796. Mrs. Wright was not an expert witness, and her said testimony cannot, as it seems to us, be deemed as sufficient to justify an inference upon which a verdict might properly be based, that the fragments of the bones were not at those times in apposition. But even if it might be held to have justified such an inference, upon what ground could it have been submitted to the jury in this case, there being no proof of negligence on the surgeon's part? The temporary lifting of the weight, and the readjustment of the patient in the bed, was shown not to have been negligence. And since no other negligence was established by any proof sufficient to take the case to the jury, there would be no reason for submitting the case upon the basis that this particular evidence would have shown the bones not to have been in apposition. The defendant would not have been responsible for any such condition except in case of proof of negligence on his part.

This seems to be all of the points made in the brief in support of the petition for rehearing calling for further discussion. This was the first case of the kind coming before our court. It was ably presented by counsel for both parties by brief and oral argument, and it was given our most careful consideration. We cannot believe that a rehearing could serve any useful purpose, and therefore we are constrained to deny the petition therefor.

Rehearing Denied.

BLUME and KIMBALL, JJ., concur.