Opinion
6 Div. 264.
October 20, 1921. Rehearing Denied November 24, 1921.
Appeal from Circuit Court, Jefferson County; Dan A. Greene, Judge.
Percy, Benners Burr, Coleman, Coleman, Spain Fish, and R. H. Scrivner, all of Birmingham, for appellant.
The court erred in its oral charge, and in refusing the charges requested by the defendant. Counsel cite no authority in support of their contention.
Longshore, Koenig Longshore, of Columbiana, and W. A. Denson, of Birmingham, for appellee.
Counsel discuss the errors assigned, but cite no authority in support of their contention.
Appellant interprets that portion of the oral charge to which exception was taken as an unequivocal instruction to the jury that the mere act of placing the hot water bottle in plaintiff's bed, whatever its temperature, whether 110 or 210 degrees, was under the circumstances an act of negligence. The language of the charge is, indeed, somewhat involved, and may possibly have been understood by the jury in the sense suggested by appellant. But it is also clearly susceptible of the meaning that the temperature of the water made no difference, whether it was 110 or 210 degrees, if in fact it burned the plaintiff, and if its placing in the bed at such a temperature was an act of negligence. Reading the quoted language in connection with its context, and in the light of other pertinent portions of the oral charge, we think the latter interpretation is the more natural and reasonable of the two, and more probably expresses the meaning intended; the stress being laid on the negligent contact and the actual burning that resulted.
In requesting the instruction that placing the bottle in the bed at a temperature of 110° Fahrenheit was not negligence, if properly protected, defendant's counsel no doubt had in mind the ambiguity of the quoted portion of the oral charge, and intended to make it clear. Undoubtedly, the mere fact of placing such a bottle in the bed, being usual and proper, was not in itself negligence. But either it should have been so covered as to prevent burning in case of contact with the patient, or it should have been so placed, or the patient so watched and guarded, as to avoid any contact of sufficient duration to burn and injure. The refused instruction recognized the first alternative, but ignored the latter, which was the more obviously important, under the inferences deducible from the evidence. As framed, it would have been misleading by reason of the incompleteness of its qualification of nonnegligence.
The question allowed to be propounded to the attending nurse as to the temperature of water required for the sterilization of instruments was not answered by her, and, if improperly allowed, it was without prejudice.
No other assignments of error are insisted upon, and we find nothing which would justify a reversal of the judgment.
Affirmed.
ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur.