The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1911-09-11

be predicted on ruling denying q
motion for directed verdict made al
the close OF plaintiffs case, where such
motion Is not renewed at the close OF
all the testimony
=. Where the record fails to dis
close that q motion for new trial
was made and denied, error cannot be
predicted on such alleged ruling.
Syllabus by the court.
Appeal from district court, Ward
county: e. b. Goss. j.
From judgment in plaintiffs favor
based on q verdict directly by the
trial court, defendant appeals.
| Affirmed
| Palda, ARl1er 81 Green, for appellant.
d. c. Greenleaf and w. r. Doherty,
for respondent
Opinion by Fisk. J. Goss, J. being
| disqualified, took no part in the deci-
sion, Hon. Frank r. Fisk, Judge OF the
Eleventh judicial district sitting in his
place by request.
Amelia zilke, plaintiff, va. J. A..
Johnson, defendant.
/. In an action against a physician
| and surgeon to recover damages for
alleged malpractice in which the neg
ligent act alleged consists in the Ciefen-
dant leaving some gauze in the plain
tiff's abdomen at an operation per-
formed on Nov. IS. 1906, plaintfff, be-
fore establishing the alleged act of
negligence and ever defendants OBJ
lection, was permitted to testify to the
pain and suffering endured by her.
Held that such objection merely
goes to the order Of proof and the rul-
ing complained Of was non-prejudi-
cial
2. It was not error to permit plain
tiff, married woman to testify to her
inability, after such operation, to per-
form her usual household work, II ap-
pearing that such testimony was Of
fered merely to show the extent and
character OF plaintiffs injuries and
not for the purpose of augmenting the
damages on account of loss OF services.
8. 1t was proper to permit plaintiff
to show that she had Internationally
obligated herself to pay another ply
sician and surgeon for performing an
operation for the purpose of removing
such gauze.
4. The erroneous admission OF GER
tain immaterial testimony held not
prejudiciaL
8. Certain other objections merely
going to the order Of proof held not
prejudicfal.
8. Evidence examined and held
sufficient to require its submission to
the jury.
Z. In charging the jury the trial
court made certain inaccurate state
ments regarding the allegations in the
pleadings, but being OF trivial nature
1t is held that they were not prejudi-
cial. The issue was clearly stated
and could not have been misunder-
stood by the jury.
8. The objection that the instruc-
ton as to the burden OF proof was too
general is unavailing to appellant. He
made no request for a more specified
given was more favorable to appellant
than he had right TO ask.
9. The instruction defining the
terms negligence, negligent and neg
ligently" was given in the exact Ian
guage Of the code. Held. sufhcient,
especially In view OF the fact that no
more specific instruction was asked.
TO- Among other things, the court,
in effect instructed the jury that the
defendant was guilty of negligence II
he left the gauze in the wound as al
legged. Held, correct, for the reason
that the case was apparently tried by
both parties upon the theory that de-
fendant was liable II he left the guaze
in the wound as alleged. The sole
issue being whether such fact occurred.
II. Certain other instructions re-
lative to the rule to be followed in as
sessing damages and in determining
whether defendant was negligent as
charged, considered, and held not pre-
judicial when read in connection with |
the other Instructions in the case.
IL. The court charged the jury, |
among other things as follows: IF,
during the heat OF the argument. any
of the counsel have made any state |
ment TO you OF what they consider to |
be the testimony and the evidence in |
this case it should be eliminated from
your minds and you should disregard
such statement of counsel and you
are the sole judges of the testimony
yourselves. The counsel on both sides |
have been permitted to assist in pre-
senting the facts and circumstances
Of the case to you but any statement
or opinion advanced by them should
be disregarded entirely and you are
to try this matter herein frem the
evidence introduced and from the IN
structions Of the court"
Held, following State VS.. Gutterman,
IN. d. 1913 N w. 307. that the giving
Of such instruction constitutes re-
versible error, the effect of such in
struction being to advise the Jury to
disregard entirely all statements made
by counsel in argument.
Syllabus by the court
Appeal from district court Bot
tineau county; Burr. J.
Action by Amelia ZiIke against J. A.
Johnson. From a Judgment for plain
tiff and from an order denying a new
trial. defendant appeals.
Reversed.
Noble. Blood and Adamson, for APP
pellant.
Bowen & Adams, for respondent
Opinion of the court by Fisk. J.
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