case_cite">340 F.2d 584

Elsie Clark QUINBY, Guardian of Kathy L. Barrows, Plaintiff,
v.
Rufus C. MORROW, Eleanor Krukonis and Mary Fletcher Hospital, Defendants.

No. 28.

Docket 28834.

United States Court of Appeals Second Circuit.

Argued September 30, 1964, January 7, 1965.

Decided January 14, 1965.

Robert K. Bing, Burlington, Vt. (Gravel & Bing, Burlington, Vt., on the brief), for Elsie Clark Quinby.

John M. Dinse, Burlington, Vt. (Wick, Dinse & Allen, Burlington, Vt., on the brief), for Rufus C. Morrow.

A. Pearley Feen, Burlington, Vt., for Mary Fletcher Hospital and Eleanor Krukonis.

Before LUMBARD, Chief Judge, and FRIENDLY and MARSHALL, Circuit Judges.

LUMBARD, Chief Judge.

These are cross-appeals from judgments in favor of the plaintiff against one defendant and in favor of the two other defendants in a tort action brought in the District Court for Vermont. The plaintiff sought damages for a third degree burn sustained by her ward when the surgeon placed a hot metal gag in her mouth during a tonsillectomy. The defendants are the Mary Fletcher Hospital, the surgeon, Dr. Rufus C. Morrow, and the instrument nurse, Mrs. Eleanor Krukonis. The jury returned a $30,000 verdict against the hospital but returned verdicts in favor of Dr. Morrow and Mrs. Krukonis. The hospital argues that the verdicts against it and in favor of Mrs. Krukonis are inconsistent and claims numerous errors in the charge to the jury and the conduct of the trial. The plaintiff cross-appeals on the ground that the verdicts in favor of Dr. Morrow and Mrs. Krukonis were against the weight of the evidence. We affirm the judgments.

There is no logical inconsistency in the verdicts. It is true that the most obvious basis for finding the hospital negligent would have been negligence on the part of Mrs. Krukonis. (The plaintiff does not challenge the court's instruction that the hospital was not responsible for Dr. Morrow's acts.) However, there also was evidence from which the jury could have found the hospital liable because of the negligence of the circulating nurse, Martha Lewis Sweet, who was not joined in the suit. Mrs. Krukonis testified that it was the duty of the circulating nurse to have available a basin of water for cooling the instruments after they were sterilized. According to Dr. Morrow, the basin was missing for the operation on the plaintiff's ward, or at least not in its usual place. He agreed that this was "a serious omission," and the jury properly could have found that it constituted negligence on the part of the hospital and was a proximate cause of the accident.

While the court's instructions could have stated the respective duties of the hospital and the surgeon with greater precision, we cannot say that they were so erroneous or misleading as to require reversal.

In her cross-appeal the plaintiff argues that the weight of the evidence required the jury to find Dr. Morrow and Mrs. Krukonis negligent. She seeks entry of judgment in her favor against these defendants or, alternatively in the event that we grant a new trial to the hospital, a new trial as to them as well.

Since we do not grant a new trial to the hospital, we need consider only the plaintiff's request for entry of judgment in her favor. We are precluded from granting that request by the plaintiff's failure to move in the district court for judgment notwithstanding the verdict. Cone v. West Virginia Pulp and Paper Co., 330 U.S. 212, 67 S.Ct. 752, 91 L.Ed. 849 (1947), construing Rule 50(b) of the Federal Rules of Civil Procedure. It thus appears that, in view of our disposition of the hospital's appeal, the plaintiff does not seek any relief which this court is empowered to grant.

The judgments are affirmed.

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