
    Robison & Weaver v. John Gary.
    1. In an action for an injury occasioned by negligence, when the case is such as necessarily devolves carefulness on the plaintiff, and the proof given by him discloses a case which fairly puts in question the due exercise of care on his part, the jury, in the determination of the question of contributory negligence, should be left free to consider all the evidence in the case.
    2. A charge of the court in such case, so given to the jury that they may reasonably regard it as confining them, upon the question of contributory negligence, to the evidence given only on the part of the defendant, is misleading, and, therefore, erroneous.
    Error reserved in the District Court of Wayne county.
    The record is voluminous. A brief statement,, however,, will sufficiently present the point upon which the case is decided.
    John Gary sued Robison & Weaver in the court of common pleas of Wayne county, to recover damages which he alleged he had sustained by reason of their negligence and want of skill as surgeons in setting his dislocated shoulder, and in treating it from November 7, to December 12, 1868.
    Robison & Weaver took issue upon the allegations of their negligence and want of skill in the setting and treatment of the shoulder.
    On the trial, Gary offered evidence tending to prove his case, and testified himself in relation to the condition of his shoulder from the time it was first dislocated, and its treatment by the surgeons, and his own conduct while he was under their professional care, from the 7th to the 29th of November, when he ceased to be their patient. As to the case from the 23d of November, he testified in* substance as follows:
    “ That on the 23d of November, 1868, he called at the office • of Drs. Robison & Weaver to see if he might go to work; saw Dr. Robison, and told him his arm was not very ¡strong, and he had not much use of it; the doctor told him he might be able to do a little work with it, but could not ■do anything hard; he told him to take the arm out of the .sling, that it was not necessary in the sling any longer, and the arm would gain strength faster by taking it out of the ¡sling, and using it a little, and that, when he walked, to place his hand in his vest; the sling was taken off that day, and loft off; that he went to work without the sling ¡at Barrett’s shop; first cut out a pair of woman’s shoes, laid the leather on a board, and_ cut with his wrist — could not work without the sling, and put it on again, and cut out a pair of kip boots — the uppers; cut two pair shoes and two pair boots that week; his shoulder got a little better that week ; that he told Dr. Weaver on Sunday, November 29, 1868, his arm was gaining strength, but very slowly; that .he had gone to work, as Dr. Robison had allowed him to do so ; Dr. Weaver examined his shoulder, and said it was getting along as well as could be expected, that injuries of that kind required two or three weeks’ time before a man was able to use his arm much; the doctor tried to put his (Gary’s) right hand on his right shoulder, but could not get it up, and said he thought it would all come right again, that it was caused by want of strength in the muscles of the shoulder; the swelling was considerably reduced then; that he continued to work in Barrett’s shop until the 12th of December, 1868, at the same kind of work; he used the sling the first week up to Saturday night, November 28,1868; after that, was able to use his arm the next week from the elbow out to do some hammering; he did not remember of then saying anything to Dr. Weaver about his shoulder paining him; on that day the doctor felt his shoulder, and said it seemed to be sinking away, and had a tendency to sweeny; said it was caused by the deltoid, muscle being paralyzed; that it would eventually come right; it would take time; that there is a depression back of the shoulder, and his shoulders are not of the same height, and that he knows of no difference in the size of his arms before the injury; when not using the arm, it did not pain him much, but when he worked, it pained him in the back part of the shoulder and across the arm; that on the 14th of December, 1868, Dr. J. E. Barrett examined his shoulder, worked it, and pressed on it; that he himself examined it, and felt the head of the bone just where it was during the trial, lying in front of where it should be ; until Dr. J. E. Barrett told him where the head of the bone was, he did not know.”
    He also proved by a number of surgeons that the shoulder was not in place when they examined it about the middle of December, 1868, and that Robison and Weaver claimed it was all right on the 29th of November, when Gary left their hands.
    Robison and Weaver proved that when they set the shoulder on the 7th of November, it went in place with a snap, and that Gary exclaimed : “ There, my arm is set. I felt it go into place!” . ’
    Dr. Robison, after describing the condition and treatment of the patient, testified that “ Gary complained of nothing except soreness of the shoulder joint; when he was at the office, he never complained of pain indicating that the head of the bone pressed upon any of the nerves; the next time he saw Gary was on the 23d of November, 1868,’at his office, in the forenoon ; Gary said to him. that he came to see if he could not go to work, and he answered him no, he could not, and explained to him why he could not; told him the danger of it; told him the supro-spinatus muscle was stretched, and the deltoid muscle on which he had fallen was much injured, and that, if a redislocation occurred, it would be just in the direction in which it had already gone, and it would be likely to occur if he raised his arm ; Gary then said he had a light job cf cutting out family work, uppers of women’s shoes, and that he would not have any work to do he could not do with the forearm; said he was poor and needed the job; said he did not think it would interfere with his arm, which, he said, was all right; he then told Gary what to do, that he should be very careful, and if any accident occurred he.should immediately report himself, as there was constant danger before the muscles were healed;that they were not then healed; Gary said that it was all right, and he would report if he discovered anything getting wrong; but he never did report himself after that, and he never had any opportunity by his going to their office to examine his arm; the first intimation he had of anything being wrong about Mr. Gary was through Dr. Leander Firestone, who told him Gary’s arm was out of place; said it was partially out, was a sub-clavicular dislocation; that'Gary never said one word to him on November 23, 1868, about injury or pain, except some soreness and stiffness in the joint, and he said he had the use of his arm as well as he ever had ; he then told Gary it was dangerous for him to work, and that they wished to guard against accidents by using his arm too soon; he described the muscles to him,to enable him to guard against injury, .and that was the sole object in making the explanations; he acted in good faith to him in every respect.”
    Dr. Weaver also testified, among other matters, that “ Gary made no complaint of it being out at any of his visits; he always, at his visits, reported himself as getting better every time ; on November 29, 1868, Gary was at the doctors’ office, and stated his arm was getting along very well; he then examined the shoulder, and found the head of the bone resting in the socket — its natural place: there then seemed to be a little shrinking of the deltoid muscle on the top; Gary then himself placed his hand on his opposite shoulder, with his elbow at his side; the swelling had nearly disappeared then, and Gary made no complaint of any kind, but remarked his arm was doing very welL; that he met Gary in December, 1868, at drug-store; then stated he had gone to work, and that his arm was not so strong as formerly, but was coming all right, and gaining strength every day ; Gary did not then say anything about his shoulder shrinking away or sweeny; that was about the middle of December, 1868; that Gary’s ar'm was not in same condition on trial as it was on November 29, 1868, when Gary was last at doctor’s office; that the head of the bone was then in the glenoid cavity.”
    Robison and Weaver also gave the evidence of surgeons tending to rebut the evidence offered by the other party.
    The charge of the court relating to contributory negligence on the part of Gary touching the injury complained of by him, was, in its different parts, as follows:
    “ The defendants claim that they did properly reduce the dislocation on the 7th of November, 1868, and that if the bone is now out of the glenoid cavity, it came out since the 29th of November, 1868, by reason of the carelessness of the plaintiff, and without any fault of the defendants. If you find the facts as thus claimed by the defendants they would not be liable.
    “ The defendants say that on the 23d of November the plaintiff was so far restored that he made application to Dr. Robison for permission to commence working at his trade; that the doctor refused to grant him his request unless he would do such light work as would not interfere with his diseased arm; that he was then directed to be careful, and if anything happened he should immediately report; that under these circumstances the doctor gave him the privilege to engage in cei'tain work. That plaintiff’ did go to work on the 23d, and reported to Dr. Weaver on the 29th, when his arm was in its proper place, as claimed by Dr. Weaver, and that the plaintiff’ never reported thereafter.
    . “ The plaintiff' would be under a legal obligation to comply with all the reasonable directions of the defendants ; and to require that the plaintiff- should report if anything happened would be a reasonable request on the part of the defendants. The defendants say that he did not report after the 29th of November, 1868; and, on the other hand, the plaintiff’ claims that he did comply with the directions of the defendants.
    “ The defendants claim further, that on the 29th of November, the plaintiff reported at the defendant’s office; that the plaintiff was so far restored that it was not necessary he should visit the office as' before, and was so informed, but to report if anything happened to his arm requiring further attention, and that he did not report as required.
    “We say to you, that, if you find the facts as thus claimed by the defendants, the plaintiff could not recover for any injury to his arm after the 29th of November, 1868.
    “ The defendants ask the court to charge the jury as follows :
    “ 12th. The general rule is, that a plaintiff suing for culpable fault or negligence must himself be without any misconduct or fault, and have used ordinary care; and that where an injury has resulted from the negligence of both parties, more especially if without any wanton or unintentional-wrong on the part of either, an action can not be maintained.
    
      “ This, as an abstract principle of law, is correct; but the misconduct attributable to the plaintiff must be proved by the defendants. The burden of proof, where they undertake to attribute want of care or misconduct on the part of the plaintiff, is on the defendants, and which they must make out by a reasonable' preponderance of proof. With this qualification we give you the charge as furnished us.
    “ 15th. If the plaintiff from want of care or negligence contributed to the injury which he complains of, he can not recover. That is true, with the same qualifications given before, that this fault on his part must be proved by the defendants, for the law does not infer any fault on his part.
    “The court was requested by the defendants to charge as follows:
    “ 16th. The burden of proof is on the plaintiff to show that he, himself, was free from culpable negligence, etc., which the court refused to give.
    “ The issue, then, is simply this : If you find that this shoulder was reduced on the 7th of November, 1868, the plaintiff can not recover, unless, in the second place, the plaintiff' has satisfied yon that after the 7th of November his shoulder became dislocated in consequence of the bad treatment of the physicians. If it did become dislocated subsequently, after November 7th, by reason of the fault or bad practice of the defendants in this case, he would have a right to recover.”
    •A verdict was rendered against Robison' and Weaver. They moved for a new trial on the ground that the verdict was against the law and the evidence ; also that the court erred in the charge to the jury. The motion was overruled; and they took a bill of exceptions, embodying all the evidence ; the charge of the cou'rt to the jury; and exceptions-to the charge and to the overruling of the motion for a new trial.
    Judgment was rendered on the verdict, to reverse which, a petition in error was prosecuted by Robison and Weaver in the district court, and by that court reserved for hearing and determination in the supreme court.
    
      J. P. Jeffries, for plaintiff in error,
    on the question of contributory negligence, cited 1 Hilliard on Torts, 132; Sherman & Redfield on Negligence, secs. 34, 453, 493, 496, 498; Elwell’s Mal. Pr. 127, 129; Kerwhacker v. C. C. & C. R. R. Co., 3 Ohio St. 188; Wilds v. Hudson River R. R. Co., 24 N. Y. 430; Gluppen v. N. Y. C. R. R. Co., 40 N. Y. 34, 51: Mangam v. Brooklyn R. R. Co., 36 Barb. 230; Neal v. Gilbert, 33 Cowan, 437; Cattawissa R. R. Co. v. Armstrong, 49 Pa. St. 186; Cunningham v. Lyness, 22 Wis. 245; Trove v. Vt. C. R. R. Co., 24 Verm. 487, 496; 13 Ill. 585; 19 Geo. 440; 17 Ind. 102; 20 N. Y. 64; 40 Barb. 193; 18 N. Y. 248; 59 Penn. St. 211.
    
      John McSweeney, for defendant in error.
   Bay, J.

The view we take of the case renders it unnecessary for us to notice but one of the grounds of error alleged — that founded upon the charge of the court relating to negligence of the plaintiff below contributory to the injury of which he complains.

The court properly instructed the jury that the plaintiff could not recover unless he proved that the injury he complained of was occasioned by the negligence or want of skill of the defendants in the action; and also that he could not recover, if, “without any fault” on their part, such injury was occasioned by his own negligence.

This was the theory of the charge to the jury, omitting to state how the case would be affected, if the injury for which a recovery was sought was occasioned by the negligence of both parties.

Thereupon the defendants asked the court to charge the jury, that if the negligence of the plaintiff contributed to such injury, he could not recover.

It was settled in Geiselman v. Scott, 25 Ohio St. 86, that actions against physicians or sui’geons, founded on their professional unskillfulness or negligence, are controlled, in respect to contributory negligence of the plaintiff, by the principles applicable to other actions for injuries founded on negligence.

The case made by the evidence fairly put in question the conduct of the plaintiff in respect to the injury complained of; the defendants were, therefore, entitled to the charge requested. Nor was it refused by the court; but it was given in a qualified form, as if it were “ an abstract principle of law,” unavailable to the defendants unless it was proved by them that the plaintiff was in fault.

With this qualification, as given by the court, the jury might fairly infer that they were bound to ignore the evidence given by the plaintiff tending to show negligence on his part, and to find him to be without fault, unless it was established by evidence given by the defendants.

The defendants were entitled to have the question, made by the charge they requested, decided by the jury upon the whole evidence in the case; and although the burden may be regarded as on them to show contributory negligence on the part of the plaintiff', they could not properly be limited to the evidence given by them alone; and a charge, from which that might be fairly inferred, would be manifestly misleading, and, upon the evidence in this case, would be prejudicial to the defendants; for the fault of the plaintiff, if any, was shown in part only by the evidence of the plaintiff.

Indeed,the court so entirely ignored the idea that negligence of the plaintiff, contributing to the injury of which he complained, would exculpate the defendants from like negligence, that, after qualifying the proposition requested as before stated, it concluded the charge to the jury by instructing them, without qualification, that if the plaintiff’s shoulder became displaced after it was set, by reason of the negligence or unskillfulness of the defendants, he would have a right to recover.

We are apprehensive that under the charge, as given, the jury may have been so far misled, in relation to the question of contributory negligence by the plaintiff, as to give a different verdict from what they would have done if the question had been left to them unqualifiedly to be decided upon the whole evidence in the case.

Taking this view of the case, we do not feel called upon to discuss at length the vexed questions relating to the burden of proof in cases founded on negligence.

The circumstances and character of the injury complained of in this case were such as necessarily devolved carefulness upon the plaintiff, -and the evidence given by him disclosed a case which fairly put in question the due exercise of care on his part; and, as said by the court in Waters v. Wing, 59 Penn. St. 211, the request of the defendants should have been so answered “ that the jury might have been left free to consider the defects of the plaintiff's case.” That was a case founded on negligence, and, as in this case, the plaintiff was exposed to a suspicion of negligence. A charge like that given in this case was'held to be an inadequate presentation of the law, in that it went too far in placing the burden of proof on the defendant, when the jury should have been left free to consider the defects of the plaintiff’s case.

It is only when the injury is shown by the plaintiff* and there is nothing that implies that his own negligence contributed to it, that the burden of proving contributory negligence can properly be said to be cast on the defendant; for when the plaintiff’s own case raises-the suspicion that his own negligence contributed to the injury, the presumption of due care on his part is so far removed that he can not properly be relieved from disproving his own contributory negligence by casting the burden of proving it on the defendant, the same as if the presumption in favor of the plaintiff* was unquestioned on his own case. The question should be left, upon the whole evidence, to the determination of the jury, with the instruction that the plaintiff can not recover if his own negligence contributed to the injury. 24 Ohio St. 631, 642, 654; Whar. on Neg., secs. 425, 426; Shear. & Red. on Neg., secs. 43-45.

It follows that judgment of the court of common pleas must be reversed, and cause remanded for a new trial.

Judgment accordingly.  