DixoN, O. J.
1. The first error assigned is, that the court erroneously admitted testimony tending to show that the place of the amputation complained of was not the proper one, and increased the danger to the life of the patient. Dr. Dousman, a medical witness examined on the part of the plaintiff below, testified “ that the point of amputation was [352]*352too bigb, and that tbe danger of death was somewhat increased by the selection of that point.” This was objected to by the defendant below (now plaintiff in error), because the manner of the amputation, and not the place of .it, was the gist of the plaintiff’s action, as alleged in the complaint. The allegation is, “ that the defendant wrongfully, carelessly, negligently, and unskillfully performed said amputation,” etc. We are of the opinion that the testimony received was not objectionable under the allegation. It is a matter, if not of common, certainly of professional, experience, that in many cases of amputation the care and skill of the surgeon is involved as much in the selection of the point of amputation as in the manner of its performance after the point has been selected. This appears to have been such a case, and the selection of the point may with propriety be said to have been part of the performance itself. When, therefore, it is charged that the amputation was carelessly or unskillfully performed any want of proper care or skill in the selection. of the place seems necessarily to be included. The objection, if any really exists, seems rather to be that the complaint is not sufficiently specific and certain, which could only have been reached by motion.
2. The next alleged ground of error is, that the court improperly rejected an explanation of the circular method of amputation, as offered to be shown by the defendant by the testimony, of a medical witness. The purpose of this offer seems to have been, to show that in the circular method of amputation the use of muscle or integument sufficient to cover and protect the end of the bone is discarded by many of our most skillful surgeons. The amputation in question was performed by what is known. among surgeons as the flap method; and one of the chief causes of compla'nt against the defendant was, that he cut the flaps, especially the upper one, too short, so that it was impossible to bring [353]*353them together when the leg of tbe patient was placed in the natural horizontal position, as he was lying upon his bed. The court rejected the explanation of the circular method, for the reason that it was immaterial. No light has been thrown upon this question, either by the arguments of counsel or our own investigations, which enables us to say there was any error in this ruling. The materiality of th'e evidence to this case is not apparent, more particularly when it is considered that the unfortunate result of the operation is to be ascribed, not to any undue exposure of the bone, but to the position in which the limb was required to be placed in order to bring the flaps together. It was elevated, as some of the witnesses testify, to an angle of about forty-five degrees, and caused the patient great pain and irritation whenever an attempt was made to straighten it. This elevation prevented the natural and ordinary discharge which might otherwise have taken place from the wound, and caused the pus and other unhealthy secretions to remain .in the limb, and to fall back until a sinus was formed above the hip, which discharged copiously. It was in this way, as is claimed, that the shortness of the flaps, or lack of muscle preserved, tended to increase the danger of death to the patient; and we agree with the learned judge before whom the cause was tried, that the testimony offered was strictly immaterial.
3. The third error assigned is in rejecting the testimony of experts upon the case as made by the plaintiff’s witness Knapp. After having shown by the medical expert that he had heard the testimony of the witness, lie was questioned as follows: “ Suppose his statement relative to the amputation and its subsequent treatment to be truthful, was or was not the amputation well performed? "Was the subsequent treatment of the patient proper or improper ? And, in your opinion, was or was not the death of the patient the result [354]*354of any neglect or want of skill in the surgeon ? ” To these questions objection was taken on the part of the plaintiff, and the objection sustained by the court; but the counsel for tbe defendant was allowed to and did question the adept upon a hypothetical case stated to him by the counsel, formed on the counsel’s understanding of the testimony of any witness,'and such questions were answered. There is some conflict of decisions as to the admissibility of questions in the form here put and rejected; some courts holding that the witness may be .asked for his opinion only on an assumed state of facts; others, upon the evidence given on trial, if he heard it, viewing it as a case stated; and others still, that the latter course is not proper except where the facts are admitted, or not disputed. The decided weight of authority seems to be in favor of the rule secondly above stated, and consequently in favor of the admissibility of the questions here put. Eor ourselves, we can see no reasonable objection to it. The sole object of all rules upon the subject is, that the questions shall be so framed as not to require the expert to give an opinion upon the credibility of the testimony and truth of the facts, which are purely questions for the jury. The questions asked required no expression of opinion as to the credibility of the testimony or truth of the facts deposed to by the witness Knapp. The case stated — “ supposing Knapp’s statement to be truthful ”— was purely hypothetical, and in this respect seems to us to be fully in harmony with what should be the legal rule in such cases. And so we understand the decision of our own court in the case cited from 1 Chandler, 178 ; for the court say: “ The facts, as given in evidence, might have been stated to the witness, and then his opinion upon them would have been competent; or he might have given his opinion upon a similar case, hypothetically stated.” It follows, therefore, that the court erred in rejecting the questions; [355]*355and tbe question tben arises, whether the error was cured by allowing them to be put and answered in the other form. We are inclined to think it was. It. is manifest that it is but a matter of difference in the forfns of putting the same question, neither of which can be said to possess any decided advantage over the other. The opinion of the adept upon the same supposed state of facts can be readily obtained by either. In the one, the statement of the witness is taken as a supposed case; in the other, the statement is repeated by counsel, or a ease stated exactly corresponding, and the opinion of the adept is required upon that. We do not see how the plaintiff in error could have been prejudiced.
4. The fourth assignment of error is, that the court erred in the rejection of the defendant as a witness. The plaintiff, the widow of the deceased, who sued as administratrix of his estate, was examined as a witness in her own behalf, and testified to conversations and transactions had between herself and the defendant, and between the defendant and the deceased in her presence. The defendant offered himself as a witness, but was rejected. There is no doubt about the inequality of the rule thus established; but we see no escape from it under the statute.
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DixoN, O. J.
1. The first error assigned is, that the court erroneously admitted testimony tending to show that the place of the amputation complained of was not the proper one, and increased the danger to the life of the patient. Dr. Dousman, a medical witness examined on the part of the plaintiff below, testified “ that the point of amputation was [352]*352too bigb, and that tbe danger of death was somewhat increased by the selection of that point.” This was objected to by the defendant below (now plaintiff in error), because the manner of the amputation, and not the place of .it, was the gist of the plaintiff’s action, as alleged in the complaint. The allegation is, “ that the defendant wrongfully, carelessly, negligently, and unskillfully performed said amputation,” etc. We are of the opinion that the testimony received was not objectionable under the allegation. It is a matter, if not of common, certainly of professional, experience, that in many cases of amputation the care and skill of the surgeon is involved as much in the selection of the point of amputation as in the manner of its performance after the point has been selected. This appears to have been such a case, and the selection of the point may with propriety be said to have been part of the performance itself. When, therefore, it is charged that the amputation was carelessly or unskillfully performed any want of proper care or skill in the selection. of the place seems necessarily to be included. The objection, if any really exists, seems rather to be that the complaint is not sufficiently specific and certain, which could only have been reached by motion.
2. The next alleged ground of error is, that the court improperly rejected an explanation of the circular method of amputation, as offered to be shown by the defendant by the testimony, of a medical witness. The purpose of this offer seems to have been, to show that in the circular method of amputation the use of muscle or integument sufficient to cover and protect the end of the bone is discarded by many of our most skillful surgeons. The amputation in question was performed by what is known. among surgeons as the flap method; and one of the chief causes of compla'nt against the defendant was, that he cut the flaps, especially the upper one, too short, so that it was impossible to bring [353]*353them together when the leg of tbe patient was placed in the natural horizontal position, as he was lying upon his bed. The court rejected the explanation of the circular method, for the reason that it was immaterial. No light has been thrown upon this question, either by the arguments of counsel or our own investigations, which enables us to say there was any error in this ruling. The materiality of th'e evidence to this case is not apparent, more particularly when it is considered that the unfortunate result of the operation is to be ascribed, not to any undue exposure of the bone, but to the position in which the limb was required to be placed in order to bring the flaps together. It was elevated, as some of the witnesses testify, to an angle of about forty-five degrees, and caused the patient great pain and irritation whenever an attempt was made to straighten it. This elevation prevented the natural and ordinary discharge which might otherwise have taken place from the wound, and caused the pus and other unhealthy secretions to remain .in the limb, and to fall back until a sinus was formed above the hip, which discharged copiously. It was in this way, as is claimed, that the shortness of the flaps, or lack of muscle preserved, tended to increase the danger of death to the patient; and we agree with the learned judge before whom the cause was tried, that the testimony offered was strictly immaterial.
3. The third error assigned is in rejecting the testimony of experts upon the case as made by the plaintiff’s witness Knapp. After having shown by the medical expert that he had heard the testimony of the witness, lie was questioned as follows: “ Suppose his statement relative to the amputation and its subsequent treatment to be truthful, was or was not the amputation well performed? "Was the subsequent treatment of the patient proper or improper ? And, in your opinion, was or was not the death of the patient the result [354]*354of any neglect or want of skill in the surgeon ? ” To these questions objection was taken on the part of the plaintiff, and the objection sustained by the court; but the counsel for tbe defendant was allowed to and did question the adept upon a hypothetical case stated to him by the counsel, formed on the counsel’s understanding of the testimony of any witness,'and such questions were answered. There is some conflict of decisions as to the admissibility of questions in the form here put and rejected; some courts holding that the witness may be .asked for his opinion only on an assumed state of facts; others, upon the evidence given on trial, if he heard it, viewing it as a case stated; and others still, that the latter course is not proper except where the facts are admitted, or not disputed. The decided weight of authority seems to be in favor of the rule secondly above stated, and consequently in favor of the admissibility of the questions here put. Eor ourselves, we can see no reasonable objection to it. The sole object of all rules upon the subject is, that the questions shall be so framed as not to require the expert to give an opinion upon the credibility of the testimony and truth of the facts, which are purely questions for the jury. The questions asked required no expression of opinion as to the credibility of the testimony or truth of the facts deposed to by the witness Knapp. The case stated — “ supposing Knapp’s statement to be truthful ”— was purely hypothetical, and in this respect seems to us to be fully in harmony with what should be the legal rule in such cases. And so we understand the decision of our own court in the case cited from 1 Chandler, 178 ; for the court say: “ The facts, as given in evidence, might have been stated to the witness, and then his opinion upon them would have been competent; or he might have given his opinion upon a similar case, hypothetically stated.” It follows, therefore, that the court erred in rejecting the questions; [355]*355and tbe question tben arises, whether the error was cured by allowing them to be put and answered in the other form. We are inclined to think it was. It. is manifest that it is but a matter of difference in the forfns of putting the same question, neither of which can be said to possess any decided advantage over the other. The opinion of the adept upon the same supposed state of facts can be readily obtained by either. In the one, the statement of the witness is taken as a supposed case; in the other, the statement is repeated by counsel, or a ease stated exactly corresponding, and the opinion of the adept is required upon that. We do not see how the plaintiff in error could have been prejudiced.
4. The fourth assignment of error is, that the court erred in the rejection of the defendant as a witness. The plaintiff, the widow of the deceased, who sued as administratrix of his estate, was examined as a witness in her own behalf, and testified to conversations and transactions had between herself and the defendant, and between the defendant and the deceased in her presence. The defendant offered himself as a witness, but was rejected. There is no doubt about the inequality of the rule thus established; but we see no escape from it under the statute. It is the capacity in which the opposite party sues or defends, and not the nature of the testimony, which settles the question of the competency of the other party to be examined as a witness in his own behalf. R. S., ch. 137, sec. 51. The New York code, sec. 399, makes provision for such eases by declaring that where executors, administrators, heirs-at-law, next of kin, or assignees shall be examined on their own behalf, in regard to any conversation or transaction had between the deceased person and the assignor, or other party to the action, respectively, then the assignor or the other party may be examined in regard to such conversation or transaction, but not in regard to any new matter. And our own legis[356]*356lature, by an act passed at the last session (Laws of 1867, cb. 41), have in part remedied the evil by providing tbat a party may in all cases be examined as a witness in relation to any conversation, transaction or’ matter, as to which, the opposite party has given evidence upon the trial, and which did not occur or take place with or in presence of the deceased, or insane person, or persons otherwise legally incapacitated from giving testimony. There was no error in rejecting the defendant as a witness on his own behalf.
5. Lastly, there was no error in the giving or refusing of instructions. This is a civil action; and there is a distinction between civil and criminal actions in respect to the degree or quantity of evidence necessary to justify the. jury in finding their verdict for the government. In civil actions, their duty is to weigh the evidence carefully, and to find for the party in whose favor the evidence preponderates, although it be not free from reasonable doubt, or do not actually exclude the truth of any other theory. 3 Greenleaf on Ev., sec. 29. The instructions given were sufficiently favorable to the defendant.
By the Court. — Judgment affirmed.