On Rehearing. In treating the evidence admitted over the defendant's objection, as to the condition of the surgical instruments and the character of the hospital, we dealt with its effect rather than with the nature of the objections. The objections, however, were well taken.
One of the questions to the witness was: "Were those instruments sterilized by the modern method of sterilization?" The objection was: "It is not shown that the doctor (the witness) sterilized the instruments or knew they were sterilized." There was no evidence showing, or tending to show, that the doctor sterilized the instruments or knew they were sterilized.
The other question was: "Is that a modernly equipped hospital with reference to instruments and the condition in which they keep the instruments as to sterilization?" The objection was that this question called for "a conclusion and invades the province of the jury." (Italics supplied.) There was no evidence that the doctor had ever inspected the hospital, or, as for that matter, that he had ever been there before, and only once shortly after; and his statement in respect to it was purely a conclusion and, in so far as this record shows, was wholly unsupported by facts justifying the witness to express such conclusion.
The application is, therefore, overruled. *Page 484