#### AMERICAN REALTY COMPANY *v.*THOMPKINS.

Negligence; Tbial; Instructions to Jury; Direction oe Verdict.

1. A person injured by the negligence of another is bound to exercise ordinary care to render the injuries no greater than necessary, but he is not bound to take every possible precaution or to employ the very best medical skill. He must exercise the ordinary judgment and care which persons in his condition are ordinarily capable of exercising.

2. A special instruction asked by the defendant in a personal injury case is properly refused when to the effect that it was the duty of the plaintiff, as matter of law, to undergo an operation advised by her physician, leaving it for the jury to determine, as matter of fact, whether such operation, if performed, would probably have resulted in effecting a cure; especially where the operation suggested would have been an unusual one and attended with danger to life.

3. It is only in those cases where the evidence of contributory negligence is so strong and convincing that all reasonable minds could come to no other conclusion than that it existed, that the trial court is justified in directing a verdict on that ground.

No. 2269.

Submitted March 7, 1911.

Decided April 3, 1911.

Hearing on an appeal by the defendant from a judgment of the Supreme Court of the District of Columbia, on verdict, in an action to recover damages for personal injuries.

*Affirmed.*

the Court in the opinion stated the facts as follows:

Tbis is an appeal from a judgment for damages for personal injuries, recovered by the plaintiff, Leab H. Thompkins, against the defendant, American Realty Company, in an action begun by declaration filed March 31, 1909.

The pleadings are in the ordinary form, and no question is raised on them.

*88Plaintiffs evidence tended to show that the defendant owned and conducted the Plymouth Apartment House in the city of Washington, in which an elevator was conducted for persons lawfully therein. That plaintiff occupied a room therein as a tenant on and before July 14th, 1908. That there was a freight compartment in said elevator immediately under the passenger compartment. A rope was in use by means of which the conductor could, from the passenger compartment, without going below, release the latch of the door of the freight compartment. That said rope had been out of order for several days prior to July 14th, 1908, and formed a loop at one side of, and partly across, the door of the passenger compartment. That another tenant had caught his foot in said loop and tripped several days before July 14th, and the fact was known to the elevator conductors, the janitor, and the superintendent of the building, on the day of the occurrence. That in the afternoon of July 14th, 1908, plaintiff took passage in the elevator, and in attempting to leave the same caught her foot in said loop and fell to the floor. That she, was not conscious of serious injury at first, but later in the day suffered much pain in her back. That she at first applied simple home remedies, but on the 21st called in a physician who gave medicine and made hot applications. That these failing to reduce the pain, he sent her to a hospital, where she remained eighteen days, going afterwards to the country for a time on his advice. That about October 1, 1908, the physician for the first time realized that the sacro-iliac joint was injured, and referred plaintiff to an orthopaedic surgeon. That he pronounced the injury to be a displacement of the sacro-iliac joints. That the sacro-iliac bones are two large bones on either side of the pelvis at the back; the sacrum is the lower part of the spine; displacement of the joint is a putting out of joint, a separation. The iliac bones present a broad, flat surface which connects with the sacrum by a sort of cushion of cartilage fitting in between them, making a fixed joint with slight mobility; an iliac displacement creating an increased mobility. That there was a double displacement, both joints being affected. That the surgeon used *89adhesive plaster, at first, to prevent motion, and relieved the pain somewhat. That he used a plaster jacket, which afforded partial relief; and tried other methods of treatment, but without success. That while plaintiff had gained twenty-five pounds in weight, there remained the motion in the two joints. The surgeon expressed the opinion that there was but one chance for plaintiff’s entire relief, and that was through an operation. The operation would be to remove the cartilage between the two joints so as to allow the bones to go together. To do this, a surgeon would have to cut down over the joints from, the outside. Witness had never, himself, performed such an operation. Had heard of but two operations of the kind, one by Dr. Goldthwaite, of Boston, the other by Dr. Hoke, of Atlanta. He was not informed of the history of the Boston operation, but had been informd by Dr. Hoke, of Atlanta,- that the bones of his patient had loosened after the operation, and there was no cure. That he had suggested to the plaintiff to undergo an operation if she did not improve. This was in February, 1910. He further said that an operation was the thing to do when everything else had failed, but that he would not like to make a prognosis of the probability of her recovery, if an operation were performed. He was of the opinion that an operation should be performed and still is. Plaintiff declined for the time being. Plaintiff testified that she was a dressmaker, and that her profits had been $100 per month prior to her injury. That she was not now able to do one half the work she formerly could; if she works a day her pain is intense. She had always been well and capable before the accident, not having lost a day from work in four years. She now suffers constant pain, and when walking her joints slip and make a cracking sound. She said that the surgeon advised an operation, as he had done everything else that he could. He said it was a last resort. That she would not have an operation while her mother lived. The latter was about eighty years of age, and worry would shorten her life. She did not want her worried, and moreover was afraid of the operation. That she had undergone one operation, and did not want any more.. The surgeon *90.said the one thing remaining was an operation, but did not say it would cure. If he did not know it would cure, she would not have it. Defendant offered as a witness a well-known •specialist in orthopaedic surgery, who said that In February, 1910, he examined plaintiff at request of defendant. He described the conditions saying there was more motion in the joint than was absolutely normal. His opinion was that she could be cured. That after the good treatment she had received without a satisfactory result, it remained only for some •operative interference to bring about firmness of the joint. He could not say positively that she could be relieved, but his experience justified him in saying that she stood a very good chance of it.. That at this joint there is a slight degree of motion. “Any operative procedure will destroy the motion, of course, but motion is not absolutely essential for the well-being or physical condition of the patient, like many other things we have removed, and never miss them. That joint becomes stiffened without possibility of the parties being aware of it in many diseased conditions such as rheumatism of inflammation of the joint, when it may become stiff without the patient suffering any inconvenience. So we take that as a basis in giving this advice. If, under pathological conditions, it becomes •stiffened, and the patient does not mind it, we would feel justified in bringing about such a condition. The operation simply consists in laying bare this joint through an incision, and using a curette on the bony substances, and afterwards jamming them together and holding them in position for a certain time, when they would unite.” He further said that it was not a very common operation, but had been performed quite a number of times. That he had performed two such, which were satisfactory in their results; one about eighteen months, and and the other three years ago. That one of the cases had a very similar history to plaintiff’s. That the chances are largely in favor of a cure by the operation. It is a perfectly safe operation, as safe as operations generally are. There are many much more dangerous ones. It involves no vital organ, and the patient cannot be made worse. It is a well-recognized oper*91■ation in orthopaedic surgery. The operation would entail an incision 2 or 3 inches long. On cross-examination, witness said he had not written a pamphlet on, or formally reported, the two cases mentioned, because he thought they were hardly worthy of report, and also that he had better wait and see if the results were absolutely permanent. He could not recall •any other like operations by other surgeons than one by Dr. -G-oldthwaite, and one by Dr. Hoke. The operation, if successful, does not produce a normal joint. It is destroyed. We 'try to produce the next best thing. Instead of one that moves too much, we have one that will not move at all. It is what is •called a major operation, and blood poisoning may result, producing death. There is no means of insuring a patient against .-such a result in operations of this kind.

The defendant offered three prayers for instructions, the third of which is as follows:

“The jury are instructed that it was the duty of the plaintiff “to procure competent medical aid, and to be governed by the advice of the physician or surgeon by her selected; and if the jury believe from the evidence that the plaintiff was advised by her surgeon to undergo an operation in order to effect a ■cure of the sacro-iliac displacement, with which she was suffering, and they further believe from the evidence that such ■operation would, in all probability, have resulted in effecting a ■cure of plaintiff’s injury, and they further believe from the ■evidence that the plaintiff failed and refused to undergo such operation, then the jury are instructed that such failure on the part of the plaintiff constitutes negligence on her part, which would preclude her recovering any damages for her pain, suffering, or injury extending beyond the time when such an operation might have reasonably been performed and a cure perfected, after she received such advice.”

The other two are of the same general purport. These were refused, and exceptions reserved. The court then of its own motion gave the following charge in lieu of the refused instructions :

“The law imposes upon a person injured through the fault *92or negligence of another, the duty of using all reasonable care and of employing all reasonable and proper means to render the injury, where such injury has been received, as light as possible; that is, such care and such means as an ordinarily prudent person would have exercised and employed under the same or similar circumstances. Therefore, it was the duty of the plaintiff in this case, after receiving the injury complained of, to use ordinary care, judgment, and diligence in securing medical or surgical aid; and if you find from the evidence that, after she received such injuries, she failed to use ordinary care, judgment, and diligence in procuring timely medical or surgical aid, and if you further find from the evidence that, by reason of such failure, her condition is now different and worse than it would have been if she had used such ordinary care, judgment, and diligence in the premises, then, if you find for the plaintiff, you should take this into account in making up your verdict, and should not allow her damages for such ailment or suffering, if any, as did or may hereafter result from such failure.”

In addition, the following instruction was given at request of defendant: “The jury are instructed that they are not entitled to award damages to the plaintiff for a permament injury, unless they are convinced by the weight of the evidence that the injury suffered by the plaintiff is permanent in character, and is not likely to be cured by lapse of time, or medical or surgical treatment.”

*Mr. A. A. Birney*and *Mr. Henry F. Woodard*for the appellant.

*Mr. J. J. Darlington*and *Mr. Alexander Wolf*for the appellee.

Mr. Chief Justice Shepard

delivered the opinion of the Court:

The errors assigned on the refusal of the defendant’s three *93special prayers for instructions present but a single question. the charge of the court instructed the jury in respect of that familiar principle that an injured person is bound to exercise ordinary care to render the injuries no greater than necessary. This 'extends to the procurement of such surgical or medical treatment as "would ordinarily be considered as requisite by persons in similar conditions, and under like circumstances. One is not bound to take every possible precaution, or to employ the very best medical skill. All that the law requires is the exercise of the ordinary judgment and care which persons in the condition of the injured person are ordinarily capable of exercising. This doctrine is declared in cases cited on behalf of appellant, as follows: *French*v. *Vining,*102 Mass. 132, 3 Am. Rep. 440; *Louisville, N. A. & C. R. Co.*v. *Falvey,*104 Ind. 409-424, 3 N. E. 389, 4 N. E. 908; *Texas & P. R. Co.*v. *White,*62 L.R.A. 90, 42 C. C. A. 86, 101 Fed. 928; *Pullman Palace Car Co.*v. *Bluhm,*109 Ill. 20-25, 50 Am. Rep. 601; *Collins*v. *Council Bluffs,*32 Iowa, 324-329, *1*Am. Rep. 200.

The appellant does not deny the general correctness of the charge given, but contends that, in view of the particular facts, it did not go far enough in the application of the law thereto. This was the ground of the exception noted. Counsel say: “We complain of this instruction, because it does not apply the general law to the facts of the case; at least it applies only partially.”

It is argued that while the evidence shows that plaintiff did receive medical and surgical aid, it also shows that she refused to be guided by the advice of her surgeon to undergo an operation. This is true, but the charge left it to the jury in general terms to say whether she had failed to use ordinary care throughout. Assuming that the court should have given an instruction specially directing the attention of the jury to the' fact that plaintiff had refused to undergo an operation advised by her own surgeon, and directing them specially to consider whether she failed to exercise ordinary care and precaution in such refusal, had an instruction limited thereto been prayed, we *94think the refused instructions were not of that character. They embody the proposition contended for by the appellant, that it was plaintiff’s duty “not only to consult, but be guided by the-advice of her surgeon.” Embodying that proposition, the refused instructions declared, as matter of law, that it was the-duty of plaintiff to follow the advice of her surgeon, and undergo the suggested operation.

The only question of fact left to the jury was whether such-operation, if performed, would in all probability have resulted' in effecting a cure. If they so found, they were told that the-refusal to undergo the operation constituted negligence on her-part, which would prevent her recovery of damages for' suffering an injury extending beyond the time when such operation* might have reasonably been performed and a cure effected, after-she received such advice. "We are of the opinion that the instructions, if given, would have constituted an invasion of the-province of the jury, and that they were therefore properly refused. Whether an injured person has been guilty of negligence contributing to the receipt of the injury is always a question of' fact for the determination of the jury. Eor the same reason, it is a question of fact, whether after an injury the party has* neglected to use reasonable precautions and remedies that would* in all probability have prevented future suffering and incapacity. It is only in those cases where the evidence of contributory negligence is so strong and convincing that all reasonable minds could come to no other conclusion than that itexisted, that the court is justified in directing a verdict on that ground. That is not the case here. Confessedly, the operation advised as a last resort was attended with danger to life. Nor is it at all certain that it would have relieved the plaintiff. It was an unusual operation. The plaintiff’s surgeon, and apparently the profession, had heard of its performance in but two cases. -One of these had failed to remedy the injury; the-result of the other was not known. The two operations that had been performed by defendant’s surgeon were unknown to* the profession at large; in fact they had not been made the subject of a report, because he was not certain that they had ef*95fected permanent relief, although one had been performed three-years before, and the other eighteen months. It would be unreasonable to say that one who has been injured by the negligence of another is bound in law to undergo a serious surgical operation, which would necessarily be attended with some risk of failure and of death. Certainly one has some liberty of choice under such circumstances. The most that the wrongdoer could demand would be that the jury should be permitted to determine whether the refusal of the injured person to suffer such an operation, under all of the circumstances, was unreasonable, and wanting in ordinary care, and productive of increased damages.

There was no error either in the charge given, or in refusing the special instructions; and the judgment will therefore be-affirmed, with costs. *Affirmed.*

On application of the appellant a writ of error to the Supreme Court of the United States was allowed.