Boydston v. Giltner

3 Or. 118

• Court: Multnomah County Circuit Court, Oregon
• Decided: November 15, 1869
• Status: Published

Opinion

Upton, J.,

in charging the jury, after stating the issues made by the pleadings, explained the duties and liabilities of physicians and surgeons, substantially as in the case of jHeath v. Glisan et al, the judge proceeded to say: “If you should find that Dr. Giltner, the defendant, refractured the arm, it does not follow from that fact alone that he was guilty of bad surgery. Nor does it follow from the fact that the plaintiff was not informed what the surgeon was doing or about to do. If you find from the evidence that the arm was purposely refractured by the defendant under circumstances that disclose a want of ordinary care and skill on his part — or that he refraetured it improperly, either because of gross ignorance or the want of ordinary care or skill on his part, that act of itself renders the defendant liable. But unless you do find from the evidence both that the defendant refraetured the arm, and that it was the result of a lack of ordinary skill or care, there is no blame to be attributed in consequence of that act, and your inquiries should be directed to other branches of the ease.

Counsel both for the plaintiff and for the defendant have remarked upon the propriety or impropriety of what they term a compromise verdict. In regard to that, it is my duty to say to you, that jurors should carefully and patiently canvass and examine all the evidence, with an honest and conscientious effort to reconcile any differences of opinion they may entertain of the truth of the matters put in issue. And it is sometimes the case, when only dollars and cents are involved, when, it is probable the exact truth can never be known, and where there isan honest difference of opinion among jurors, as, for an instance, when the matter between the parties is the state of their accounts, which have been loosely kept, and there is doubt as to the true balance, that concessions may be made for the benefit of both parties, which are not fully in accord with the individual juror’s view of the facts proved. But in this class of cases, each party has a right to insist that the jury, and each juror, should render a verdict, if at all, literally “according to the law and the evidence, as given on the trial.”

When a man enters upon a trade or profession for his life’s business, he stakes the efforts of a lifetime in building up for himself a character and a name in that trade or profession; and if tho plaintiff's case is not established by the proofs, the defendant is entitled to a verdict at your hands, which you have no right to withhold from him. But if the defendant assumed to act in a profession of which ho is grossly ignorant, or if, after undertaking the grave responsibility of treating the plaintiff’s broken limb, he has failed to treat the case with that ordinary care and skill that every one has a right to expect of his physician and surgeon, and has thus deprived the plaintiff, for the remainder o£ his life, of the proper use of Ms right hand, your verdict should compensate the plaintiff for the injury he has sustained, and place a mark on the defendant’s professional standing that time will not efface.

The jury rendered a verdict for the defendant.