A. Alexander C. Calisch, for plaintiff, cross. Always. Q. And that, of course, you say will be permanent; that will never go away? A. No. Q. It wouldn't be a good thing to have it go away; it would weaken that bone? A. Yes; it would weaken that bone materially if it didn't have that. Q. And that condition, you say, of course, will be permanent? A. Yes, sir. Q. Now in regard to what you call the limited motion; you say the motion up and down, he has apparently got the normal motion? A. Apparently and he would get more by use and treatment through a doctor. Q. Of course, you couldn't tell, could you, from the examination of that foot in the condition that it was until it has had an opportunity by use and treatment to heal you couldn't tell exactly what its con-dition is or will be? A. Not as regards that ankle or the swelling in the leg; no. Q. And you are basing your judgment upon your experience? With what happens in other cases? A. Yes, sir. Q. And so far as you can see and looking at the leg in its present condition and applying your medical knowledge, that is what you think will occur in this case? A. Yes, sir. Alexander C. Calisch, for plaintiff, cross. Q. It is advisable in all cases of fracture of that kind to use the injured member as soon as it can be done, isn't it? A. As soon as you are sure that you have solid union. Q. Yes; as soon as you have the union, then the regular and approved practice of treating that condition is to give it use, gradually? Of course, you don't start in at first and have a man walk around on a broken leg as he would on his other? A. No, sir. Q. But you have him put it down on the ground and endeavor to use it? A. I shouldn't have him put it on the ground very much; I would have it massaged and manipulated and treated before I would allow him to put much weight on it. Q. The first treatment you give is massage and manipulation to break up what you call adhesions, isn't it? Q. The manipulation that you give it cures that up and by gradually increasing that and increasing the use in the course of time the normal use is returned? A. In an ordinary fracture, but where you get a fracture where there is a crushing or impaction of one bone on the other and the joint is destroyed, no manipulation will ever bring that joint back again. 228 227 226 Alexander C. Calisch, for plaintiff, cross. In this case where this crushing has gone by and the os calcis and the astragalus are joined together. There is a joint that in an uninjured foot usually would look as if you could put your finger in there; he will never get a joint there. Q. Tell us what the os calcis and astragalus are? A. I am pointing them out (Indicating); the os calcis is the end bone that forms the heel and the astragalus is the next bone on top of it; that goes up and with the bone in the leg, forms the ankle joint; you get the rotation there. This part of the foot is made up of several bones and there is a joint between each one. Q. There isn't very much motion between those joints? Q. And the motion in the man's ankle, that is is the joint with the leg up above that? A. That has nothing to do with the ankle joint. Q. And so far as you discover there, there is no inflammation or limitation of motion in the ankle joint? A. No; excepting from lack of use right now. Q. But in this joint down in the heel there is a 229 Motion for non-suit. little limitation of motion that you think will be permanent? A. Yes, sir; that will be permanent. Notice of claim marked, Ex. 4. H. R. C. Mr. Woods: I offer Exhibit 4 in evidence. Mr. Cheney: The receipt of the notice is admitted. The receipt is admitted prior to the commencement of the action and within 120 days. Mr. Woods: The action was commenced on the 230 231 21st of August, 1913? Mr. Cheney: Yes. Mr Woods: A copy was served by registered mail the 4th of August, 1913. Mr. Cheney: I will assume that is correct. Mr. Cheney: The defendant moves for a non-suit in this case upon the ground that the plaintiff has failed to show that the defendant was guilty of any negligence which caused or contributed to the injury, and on the further ground that it affirmatively appears by the evidence in the case that the plaintiff was guilty of contributory negligence. Mr. Cheney argued in support of his motion and Mr. Woods in opposition thereto. The Court: The motion for a non-suit is granted. Mr. Woods: I take an exception to the granting of the non-suit. I ask to go to the jury on all the questions in the case as to whether or not the defendant furnished the plaintiff a reasonably safe place in which to per 233 232 Motion for non-suit. form his labor; on the question whether or not the defendant was negligent in directing the plaintiff to go upon the wall and perform the work in this way and on the question of whether or not the place that the defendant gave him was safe and upon all other questions in the case. Also on the question of whether or not the superintendent used reasonable care and caution in properly supervising the work as it progressed there. And whether or not the defendant used a reasonably safe and proper method of doing the work, and made a proper inspection of the method of doing the work and the work itself as it progressed, to keep it reasonably safe. And upon the question of whether or not the plaintiff was guilty of contributory negligence. The Court: I will deny your request upon each of those grounds separately and give you an exception to each. IT IS HEREBY STIPULATED that the foregoing case contains all the evidence given upon the trial of this action, together with all the rulings of the court and exceptions taken by each of the parties herein, and that the same be settled as above as the case and exceptions upon appeal herein, without notice. Dated December 9th, 1913. THOMSON, WOODS & WOODS, Attorneys for Appellant. ARTHUR T. PORTEOUS, and WHITE, CHENEY, SHINA 234 MAN & O'NEILL. Attorneys for Respondent. |