Opinion
April 29, 1927.
Appeal from Supreme Court of Kings County.
Ralph G. Barclay [ Louis Rothbard with him on the brief], for the appellant.
Lorenz J. Brosnan, for the respondent.
It was error for the learned trial justice to grant the defendant's motion for nonsuit at the end of plaintiff's case in chief. At that time the evidence presented an issue of fact whether the death of the child was caused by the failure of the defendant to perform the operation for appendicitis in time. The answer admits the employment of defendant to operate upon the child, and the plaintiff's evidence is that defendant examined her superficially about half-past ten in the morning when she was brought to the hospital, that he said that she had acute appendicitis, but that her appendix had not ruptured, that she should be operated upon immediately and that "every minute means her life." But the evidence is that defendant left the hospital after making this diagnosis, and did not return until ten minutes to one o'clock, at which time the appendix was found to have ruptured and was discharging pus. The plaintiff's experts testified to their opinion that this delay was a competent cause for the subsequent death of the child from peritonitis or septacemia. It may be that the defendant can explain or contradict this evidence, but it was error to nonsuit the plaintiff.
The judgment should be reversed upon the law and a new trial granted, with costs to appellant to abide the event.
MANNING, YOUNG, KAPPER and HAGARTY, JJ., concur.
Judgment reversed upon the law and new trial granted, costs to appellant to abide the event.