Court of Common Pleas of Lancaster County Boltz v. Thome. Negligence and unskillfulness of physician-Damages—Non-suit. A plaintiff who seeks to recover damages because of the negligence or want of skill of a physician must show not only that the physician was negligent and unskillful but also that the injury resulted from such negligence or unskillfulness. Where in such case the uncontradicted evidence shows that the injury resulted from a cause other than the negligence of the defendant and which no care or skillfulness on his part could have prevented, a non-suit is properly ordered. Rule to strike off judgment of non-suit. No. 32. John M. Groff, for plaintiff. John A. Coyle, contra. April 17, 1920. Opinion by HASSLER, J. October Term, 1917, This is an action to recover damages for an injury sustained by the negligence of defendant's decedent, who was a physician, in treating a broken arm of Albert B. Boltz, one of the plaintiffs. At the trial we entered a non-suit, which we are now asked to strike off. The acts of negligence complained of in the statement are that the defendant's decedent, in treating the broken arm of Albert B. Boltz, was negligent in not using antiseptics, or other preventatives on the arm, from which the bone protruded, when he set the bone and bandaged the arm; that he bandaged it too tightly, and refused to open the bandage and examine it on several occasions when the patient informed him that he was suffering intense pain. It is also alleged in the statement that because of these acts of negligence the arm became infected and amputation became necessary. At the trial the plaintiff proved that Albert B. Boltz broke his arm on Sunday, July 22, 1917, the broken bone protruding through the flesh; that he was at once taken to the office of Dr. W. B. Thome, defendant's decedent, who was a practicing physician in the borough of Elizabethtown, this County; that he set it putting cotton and silver plates on the open wound from which the bone protruded, and that he bound it tightly; that he did not use any antiseptic or other preventative on the arm; and that on three succeeding days he refused to open the bandages when the patient complained of severe pains in the arm, but on the last day, July 25, 1917, three days after the accident, he had him brought to the hospital in Lancaster, where Dr. Bitzer and one of the resident physicians amputated the arm. Dr. E. S. Snyder and Dr. C. P. Stahr, two physicians and surgeons of considerable experience, testified that the treatment administered by Dr. Thome was not with that degree of skill and care which is ordinarily practiced by the average member of the medical profession in this vicinity, having regard to the advanced state of the profession at the time. Both of them testified that in their opinion, from the testimony produced at the trial describing the condition of the arm, that its amputation was made necessary because of gas gangrene; that gas gan Boltz v. Thome. grene is caused by a germ picked up from the soil, that the germ, in their opinion, entered the wounded arm of the plaintiff at the time of the accident, as the arm then touched the ground, and that at that time there was no known antiseptic or preventative that would have killed the germ and prevented the gas gangrene from developing and making the amputation of the arm necessary. It was not only necessary for the plaintiffs to prove that Dr. Thome's treatment of the arm was negligent and unskillful, and it may be conceded that the testimony shows it was, but it was also necessary for them to prove that such negligence and unskillfulness was the proximate cause of the injury complained of. In determining what is proximate cause, the rule is that the injury must be the natural and probable consequence of the negligence: Robb v. Penna. Company, 186 Pa. 456. The burden is on the plaintiff to prove that the injury resulted from the negligence complained of: Penna. Telephone Co. v. Varnau, 5 L. L. R. 401, affirmed by the Supreme Court, 5 L. L. R. 97. Or was the natural consequence of it: Swanson v. Crandall, 2 Sup. 85. Where the testimony as to whether the negligence was the proximate cause of the injury is conflicting, it is a question for the jury, but where the facts are not in dispute, the determination of that question is for the Court: West Mahonoy Twp. v. Watson, 116 Pa. 344; P. R. R. v. Kerr, 62 Pa. 353; Hoag v. Railroad, 85 Pa. 293. Although the defendant may have been negligent, yet if it in no way contributes to the injury complained of, he cannot be held liable: Commercial Ice Co. v. P. & R. R. R., 197 Pa. 238; Simmons v. P. R. R., 199 Pa. 232. The plaintiff who seeks to recover damages because of the negligence or want of skill of a physician in treating him must show not only that the physician was negligent and unskillful, but also that the injury resulted from such negligence or unskillfulness: Wohlert v. Seibert, 23 Sup. 213; Ewing v. Goode, 78 Fed. Rep. 442; Weitzel v. Hill, 37 L. R. A. 830. As the plaintiffs failed to prove that the injury complained of was caused by the negligence of defendant's decedent, and as his expert witnesses testified that the injury resulted from causes other than such negligence and which they said no care or skillfulness of Dr. Thome could have prevented, they are not entitled to recover, and, as there was no conflict of testimony, it was the duty of the Court to enter the non-suit. Neither Dr. Bitzer nor the resident physician at the hospital were called as witnesses by the plaintiff, which is rather significant, and lends weight to the opinions of Drs. Snyder and Stahr that the cause of the amputation was gas gangrene. There is no testimony except their opinions to show what was the cause of the amputation. They were not even asked whether the Doctor's failure to use an antiseptic or preventative, or his having bandaged the wound too tightly was the cause of it. The only cause they gave was gas gangrene, and said that it was not the result of any negligence on the Doctor's part, but arose from causes over which he had no control, and to prevent which he could have done nothing. A physician does not undertake to cure a patient, and is not liable for failure to cure. His implied con Boltz v. Thome. tract is that he is possessed of and will use such reasonable skill and diligence in the treatment of the patient as is ordinarily exercised in the profession in the vicinity, and in judging of this degree of skill due regard is to be given to the advanced stage of the profession at the time: Giberson v. Kinard, 25 L. L. R. 380; Hogenrother v. Bitzer, 33 L. L. R. 314, and cases therein cited. We are convinced that the cause of the amputation of the boy's arm, which is the injury complained of in this case, was gas gangrene, and that it resulted from a germ picked up at the time of the accident, and not from any act of negligence or unskillfulness on the part of Dr. Thome. The plaintiff, therefore, failed to show that the negligence complained of was the proximate cause of the injury, and the judgment of non-suit was properly entered. The rule to stirke it off is discharged. Orphans' Court of Lancaster County Estate of Charles E. Maule, dec'd. Guardian and ward-Confirmation of unauthorized sale. The Court has no jurisdiction to confirm an unauthorized sale by a guardian where it appears that the father of the wards left a will by which he devised the property for life to his widow who is still living. While the Court has power under the Revised Price Act of 1917 to confirm an unauthorized sale which it could have authorized, it has no such power in this case. In such case the Court has no power to order the repayment of part of the purchase money paid to such guardian. Rule for confirmation of sale of real estate. May Term, 1920, No. 33. John M. Groff, for rule. H. Edgar Sherts, contra. June 17, 1920. Opinion by SMITH, P. J. On the petition of George C. Maule which amongst other things represents that he is the guardian of the minor children of Charles E. Maule, late of the Borough of State College, County of Center, and State of Pennsylvania, this rule was granted to show cause why a sale, unauthorized by the Court, of the wards' interests as heirs at law in a certain farm situated in Salisbury Township, Lancaster County, Pennsylvania, of which Charles E. Maule died seized, should not be confirmed. Immediately preceding the argument, testimony was taken in open Court, when the petitioner offered a copy of the will of the decedent, being the first and only evidence of the fact that there is a will. The petition is founded chiefly on an unwarranted assumption that the testator died intestate as to the farm, and the prayer is that the Court confirm a sale made by the guardian to Willis N. Peters as if the Court Estate of Charles E. Maule, dec'd. had previously ordered it to be sold and direct the guardian to join in a deed with the children who are of age and the widow (who would join "for the purpose of releasing her dower "). While the will is crude and was written by the testitator's own unskilled hand, by it none the less has he disposed of the farm. The first sentence after the title is, "I Bequeath all my property to my Dear Wife, Consisting of, home farm." Following this, reference is made to other properties designated as "Dwellings" at State College and Cresson. The devise is to his wife for life or for widowhood with remainder to his children. The unquestioned fact is that the farm was called by the testator and is known as the "home farm." The testator further provides that the cost of keeping it in "reasonable order" shall be paid out of life insurance money; and he expresses the hope that it may become the home for members of his family. The petitioner's wards have their home with their mother at State College, and there is no apparent reason why a guardian should have been appointed for them; and that they are comfortable and properly cared for can be inferred from a clause in the concluding sentence of the will, which is that the testator's wife "will be well provided for." The guardian's position was less than probationary. He had no status with relation to the farm. His ward's interests in remainder are not in jeopardy; ample provision having been made by the testator against their spoliation. By averring that the sale would be for "the best interests and advantage of the children of which the petitioner is guardian," it was thought to find a procedure under the Revised Price Act of 1917, but, even if other averments had not been erroneous, the facts would not have justified an affirmative opinion. By virtue of the Act undoubtedly the Court has the power to confirm a sale which it could have authorized, but to have authorized a sale in this case would have been a perversion of judicial authority. The rule is dismissed and the confirmation of the sale is refused. Costs to be paid by the petitioner. Willis N. Peters, who is declared to be the purchaser of the farm for $11,780.00, and who paid ten per cent of that amount on account thereof, has filed an answer, whether properly or not is not decided. With this answer he incorporates an appeal for an order directing the petitioner to refund the money paid by him in the event confirmation of the sale is refused. This is outside of the question before the Court and not within its province. It is not claimed that the petitioner represented all interests. and even if it should be so claimed, it is the fact that he did not. Furthermore, he is only a volunteer. He did not act by authority of the Court, and necessarily Peters dealt with him as an individual. Consequently he must seek another forum in which to have his wrongs righted. This Court has no such grasp of the case as to permit it to exercise its equity powers to the accommodation of the perplexities which beset Willis N. Peters. Court of Common Pleas of Lancaster County Street railways Frey v. Conestoga Traction Co. Right-angled collision Horse and wagon tributory negligence-Binding instructions for defendant-Rights of railway companies and drivers. While street railway companies have a superior right to use that portion of a street occupied by their tracks, this right is modified by the right of pedestrians and travelers with vehicles to use the street and cross the tracks in the exercise of care, and a motorman must also exercise care. A person about to cross a track need not wait because a car is in sight, if it is at such a distance off as to afford time for crossing if run at the usual speed, and to avoid a collision the motorman should stop his car, which should always be under control. In determining whether or not binding instructions should have been given for the defendant, the plaintiff must be given the benefit of every fact, and inference of fact, pertinent to the issue which the jury could legitimately find from the evidence before them, and all inferences antagonistic to him must be rejected. In an action for damages for injuries resulting from a right-angled collision between the plaintiff's wagon and a trolley car, where the plaintiff proceeded to cross the track when he saw a car approaching 160 feet away, and the motorman acted as if he were turning off the power but instead turned it on, and the plaintiff was struck and dragged 150 feet, the case is for the jury. Rule for judgment for defendant n. o. v. February Term, 1919, No. 38. S. R. Zimmerman and John E. Malone, for rule. B. F. Davis, contra. December 27, 1919. Opinion by LANDIS, P. J. We are not now called upon to review anything relating to the orderly trial of this case. All matters of that character are to be considered as settled. But the defendant alleges that, upon the plaintiff's own version of his cause of injury, he was not entitled, under the law, to a verdict, and for this reason we are asked to enter judgment for the defendant non obstante veredicto. The verdict having been found by the jury in favor of the plaintiff, it must be sustained, if there was any evidence by which that conclusion can be properly supported. In Toner v. Pennsylvania R. R., 263 Pa. 438, Mr. Justice Simpson said: "The single question for us is, therefore: Was there sufficient evidence to carry the case to the jury, assuming all the facts and inferences favorable to the plaintiff are decided in his favor, and all those antagonistic to him rejected?" And in Miller v. Delaware, Lackawanna & Western R. R. Co., 67 Pa. Superior Ct. 249, Orlady, P. J., said: "There can be no doubt as to the rule of law to be applied to such a case: Strawbridge v. Hawthorne, 47 Pa. Superior Ct. 647, "In applying the test, the plaintiff must be given the benefit of every fact, and inference of fact, pertinent to the VOL. XXXVII, No. 45 |