Opinion
November 7, 1919.
Henry M. Hewitt, for the appellant.
Silas B. Axtell, for the respondent.
We all agree that upon the evidence in the record the learned trial justice erred in submitting to the jury the question whether the defendant was liable for negligence because those in charge of the ship did not send the plaintiff to a hospital at Barbadoes, or at one of the ports in South America at which the vessel called. There is nothing in the case to show that if plaintiff had been sent ashore he would have or should have received other or different treatment from that given him by the ship's doctor. The evidence as to the location of hospitals at Barbadoes or the other ports mentioned by the plaintiff, is of little probative value, nor is there any evidence, if there were hospitals at these ports of call, that they had any better or different facilities for treating the plaintiff than those found in the ship's hospital, which on the evidence was supplied with the usual appliances, instruments and apparatus found upon a modern passenger steamship. It is true that there was no X-ray apparatus on the ship, but there is no suggestion in the case that such apparatus is used or can be used on a vessel such as the defendant's steamship, nor is there evidence that there was X-ray apparatus at the hospitals in the southern ports. The plaintiff's knowledge of conditions in these West Indian and South American ports is evidently meagre. He testifies, for instance, that he had been ashore at "Barbadoes" at other times. That it is a "big city." "It is as big as Brooklyn is. I don't know Brooklyn — * * *. They got plenty hospitals, certainly, and doctors." We know that Barbadoes is not a city but an island, the port is Bridgetown. The population of Bridgetown is stated in the International Encyclopedia to be from 30,000 to 35,000, while the population of the entire island of Barbadoes in 1913 is stated to be 197,792. The Encyclopedia Britannica gives the population of Bridgetown as 23,000. These encyclopedias mention the fact that there is a hospital at Bridgetown, but give no details as to its capacity or equipment. The plaintiff argues that the trial court might take judicial notice that X-ray apparatus was in general use in hospitals at Bridgetown and in South American ports (citing Field v. Empire Case Goods Co., 179 App. Div. 253; Powell v. Hill, 170 N.Y. Supp. 915; Rochester C. Turnpike Road Co. v. Joel, 41 App. Div. 43). But none of these cases is applicable to the facts here. "Courts are not bound to take judicial notice of matters of fact. Whether they will do so or not depends on the nature of the subject, the issue involved and the apparent justice of the case. The rule that permits a court to do so is of practical value in the law of appeal, where the evidence is clearly insufficient to support the judgment. In such case judicial notice may be taken of facts which are a part of the general knowledge of the country, and which are generally known and have been duly authenticated in repositories of facts open to all, and especially so of facts of official, scientific or historical character." ( Hunter v. N.Y., O. W.R.R. Co., 116 N.Y. 615.) In Robinson v. Insurance Co. of North America ( 198 N.Y. 523) the Court of Appeals, expressing some doubt whether a trial judge might take judicial notice of the harbors and location thereof within his district, said that even if such judicial notice might be taken of the location of the harbors, the condition prevailing in the harbor at a given time presents a question of fact. In Town of North Hempstead v. Gregory ( 53 App. Div. 350) this court had before it the question whether judicial notice might be taken of conditions prevailing in one of the harbors on Long Island as to ice and the effect thereof upon docks and piers in such harbor, and Mr. Justice JENKS, writing for the court, discussed the subject and collated the authorities. He said in part: "In Brown v. Piper" ( 91 U.S. 37) "the court further say: 'This power is to be exercised by courts with caution. Care must be taken that the requisite notoriety exists. Every reasonable doubt upon the subject should be resolved promptly in the negative.' * * * Phillips, in his book on Evidence, states as a further principle that the matters within judicial notice are generally collateral to and unconnected with the point in issue, so that to dispense with strict proof is of no risk, while to require it might be inconvenient by reason of expense or of difficulty."
The medical expert called by the plaintiff testified that the fracture of the tuberosity might be determined without use of the X-ray. He says that he ascertains this condition in the majority of cases without any X-ray, and that an operation is not necessary to cure or remedy such a condition, as most patients get well without it. He says that his treatment of such a fracture would have been to "immobilize the arm in external rotation," which he explains is to turn the arm out and keep it immobilized in that position for three or four weeks. He also testifies that it is absolutely necessary to have the cooperation of the patient. But his testimony, at the most, is that he might have used a different method of treatment from that adopted by the ship's doctor in immobilizing plaintiff's arm, and it is difficult, on the record, to perceive what the difference is. He did not criticize the treatment given plaintiff by the ship's doctor, nor was he asked to express any opinion as to whether it was the usual treatment in such cases or whether it was proper or improper. No question was framed or presented to plaintiff's medical witness, containing a statement of the facts of the case as claimed by the plaintiff's evidence, asking the expert's opinion as to the treatment of plaintiff by the ship's doctor. We think that upon the evidence in this case it was error to permit the jury to decide as a matter of common knowledge that the hospital in Bridgetown possessed an X-ray apparatus or that if the plaintiff had been sent there he would have received any different treatment from that given him.
But upon the law of the case, as charged by the learned trial justice without objection or exception by the plaintiff, I think there was no evidence justifying the submission of the case to the jury, and that defendant's motion at the close of the testimony for nonsuit should have been granted. The complaint alleged that the ship's doctor was incompetent and that the treatment of the plaintiff was improper. There was no evidence in the case that he was incompetent and the trial judge charged the jury without objection or exception that the ship's doctor was "a duly qualified physician, a man of some experience, of middle age, or past, and was thoroughly competent to discharge his duties as a physician on board this vessel. So that no liability can be predicated here for anything which the doctor did in his failure to properly diagnose or treat this case." The medical witness called by the plaintiff was not asked whether the diagnosis or treatment of plaintiff by the ship's doctor was proper or improper or whether it was or was not the usual and customary treatment in such cases. If there had been evidence of malpractice coupled with plaintiff's testimony as to his complaints to the master of the ship, denied by the defendant's witnesses, an issue might have been presented for the jury. But if the ship's doctor was competent, and the appliances and facilities in the ship's hospital were sufficient, the defendant was not liable. "The question to be determined was a medical one, the advice of a competent physician was sought and followed, and the ship's officers should not be held negligent because they followed his advice * * *. The ship's officers might fairly be entitled to conform their conduct touching any medical or surgical question to the instructions of men thus qualified to decide it" ( The Sarnia, 147 Fed. Rep. 106, 108, C.C.A., Second Circuit); and in Allan v. State Steamship Co. ( 132 N.Y. 91, 99) the Court of Appeals, in discussing the duty of a vessel owner to provide medical care and treatment for passengers, said: "When the shipowner has employed a competent physician duly qualified as required by the law and has placed in his charge a supply of medicines sufficient in quantity and quality for the purposes required which meet the approval of the government officials and has furnished to the physician a proper place in which to keep them, we think it has performed its duty to its passengers. That from that time the responsible person is the physician, and errors and mistakes occurring in the use of the medicines are not chargeable to the shipowner and that no different rule is applicable to such mistakes as are the result of improper arrangement in the care of the medicines than to those which are the result of errors in judgment. The work which the physician does after the vessel starts on the voyage is his and not the shipowner's." And the court said: "Any other construction must assume that the shipowner is bound to exercise some supervision over the physician in his treatment of the passengers and his arrangement of the medicine. But no officer on the ship is competent to do that." (Citing Laubheim v. De K.N.S. Co., 107 N.Y. 229, and O'Brien v. Cunard S.S. Co., 154 Mass. 272.) In the case at bar, there being no evidence of incompetency on the part of the ship's doctor or improper treatment, the defendant cannot be held in damages because the captain of the vessel did not overrule the instructions of the physician. I think no issue was presented for submission to the jury and that the judgment and order appealed from should be reversed, with costs, and the complaint dismissed, with costs.
JENKS, P.J., MILLS, RICH and JAYCOX, JJ., concurred.
Judgment and order reversed, with costs, and complaint unanimously dismissed, with costs.