I am unable to concur in the majority opinion. The factual situation developed in this case is so much like that of the case of Clampett v. Sisters of Charity, post p. 652,136 P.2d 729, I feel it should be governed thereby.
The point of difference between Judge Robinson and the other members of the court who share his views and myself seems to be whether the evidence in the two cases, and any inferences that may be drawn from the same, warrants the conclusion that the electric pads involved were defective, and, by reason thereof, caused the flesh burns of which complaints were made.
In this case, the complaint of respondent is based upon administrative negligence on the part of appellant in furnishing an electric pad which was applied by the nurses to the limb of respondent and, by reason of its alleged defective condition, she was burned. The answer of the appellant denied any negligence on its part and set up affirmatively that it is a charitable institution. There was no claim made in the answer that the respondent was guilty of negligence which contributed to her injuries. During the trial, agents and employees of the appellant testified as to the treatment given the respondent in connection with the use of the electric pad, but it is not claimed that the employees of the appellant were negligent and by reason thereof injuries were sustained by respondent.
The case was tried and submitted to the jury on the theory of administrative negligence, the court specially *Page 645 instructing the jury that, if the injuries sustained by the respondent were caused by the negligence of the employees of appellant in applying the electric pad to her limb, she could not recover damages.
The electric pad of which the respondent complains was not produced by the appellant, and the respondent never did have access to it or any opportunity to have it examined and tested. The evidence is, to a great extent, circumstantial, supplemented by the acts and conduct of the parties involved, together with the literature issued by the manufacturer of the pad, inferences that may be drawn from the entire evidence, and a sample of the type of pad used.
The jury would have been justified in finding, and evidently from its verdict did find, the following facts:
On Saturday evening, September 27, 1941, Sophia Jankelson, who will be referred to as though she were the only respondent, entered appellant's hospital for the purpose of having an operation performed on her right knee. She was given a sedative. An electric rubber heating pad was applied to her knee in the following manner: Three turkish towels that had been dipped in a solution were put around the limb. Over these towels a rubber sheeting was wrapped, and the pad was placed on top of the sheeting, and a fold of cotton cloth was put over the pad. The electric current was turned on low to generate heat to 110° Farenheit. The respondent went to sleep. About 4:30 Sunday morning, she felt the underside of her limb burn and complained to a nurse that the pack was too hot. The nurse removed the wrapping, shut off the electric current, and examined the limb, but found no appearance of a burn.
The pack was put on again, but the electric current was not turned on. The respondent continued to feel a burning sensation, so she removed the pack and pad *Page 646 from her limb. The nurse called at six o'clock and found them laid to one side. The electric current was off. She examined the limb. The skin did not appear to have been burned, but respondent complained of a burn. The nurse replaced the pack and pad, but she did not turn on the electric current.
The nurse who came on duty at seven o'clock Sunday morning observed from the hospital chart that the respondent had complained about the pack. It had again been entirely removed and was away from the limb, and the respondent told her the limb had bothered her during the night. The nurse examined it and found there was an area about three by five inches on the posterior of the calf of the limb that was red and there were several small blisters. Unguentine was applied and the pack replaced. The electric current was turned on to generate heat to 110°. The pack and pad were kept on the limb with the current on and were still on when this nurse left at 3:30 in the afternoon. It does not appear just how long the pad remained on the limb after that time.
The record shows that the type of electric pad used is made of rubber. It is about nine inches wide and thirteen inches long, and, at its end, there is a switch by which the current can be turned on at "low," and this will generate heat to approximately 110°, "medium" to approximately 120°, and "high" to approximately 135°. When the pad is in use, the switch is connected by a cord with an ordinary wall or light socket. Built into the pad are two automatic thermostats, one close to each end, and an electric heating unit. The thermostats are bimetal strips with contacts on them. These strips expand and contract and thus open and close the circuit. The average life of a pad is about a year. It may become defective through use. Defects may develop in the thermostats or in the *Page 647 switch. When the defect is in the failure to heat, it is because the current does not get into the heating unit. If the defect is in the failure to break the contact in whole or in part, the pad will overheat.
There is no claim made, and it does not appear, that respondent or whoever else removed the pack from her limb observed that the rubber of the pad had at any time been in contact with respondent's flesh. At no time was the switch set to generate a temperature higher than 110°, and a part of the time, while the pack and pad were around and on the limb, the switch was turned off. One of the Sisters of appellant, the superintendent, who had had considerable experience with electric pads, testified that, if an electric pad was in good working order and was well protected and carefully applied, it would not burn a patient, particularly if the switch was set at "low" or "medium." Another Sister, a supervisor of appellant, testified that such a pad would not cause a burn if it was in good working order, and was properly applied and carefully watched.
In the majority opinion, the expert witness called by the respondent is criticised, and the weight to be given his testimony minimized, because he stated that his experience with heating pad thermostats had been with the fabric covered type. But it must be borne in mind that he qualified as an expert on switches and automatic thermostats used in electric pads, his qualifications were not questioned, and his credibility and the weight to be given his testimony was for the jury; and, while it is true the manufacturer of these thermostats claims they are better constructed than others, the principle of their operation is the same. Anyone having knowledge of thermostats generally is competent to express an opinion as to whether, if this type becomes defective and fails to function, it may overheat. The witness was also competent to give an *Page 648 opinion as to what might happen in the way of overheating if the switch were defective. The testimony of this witness is plain and clear-cut, and no attempt was made by appellant to shake it on cross-examination or to contradict it.
As I view the record, the case resolves itself into two questions: Did the respondent receive the burn because the nurses were negligent in the application of the pad or in their supervision of her while the pad was on her limb? Or did the respondent receive the burn because of a defective pad? There is no evidence that the burn came from any source other than the pad. The nurses testified as to how they had applied the pad and as to their supervision of the respondent. If their testimony is to be believed, the pad was properly applied at all times, and the respondent carefully supervised and attended. Their credibility was for the jury to determine. By its verdict, the jury found that the burn was not the result of any negligent act or omission on the part of the nurses. There was no question of any contributing act on the part of respondent submitted to the jury, and no such contributing act is now before this court. It has been made clear, and the jury found by its verdict, that the pad was properly applied and the respondent carefully attended. We are not called upon to assume that the pad itself came in contact with the flesh of respondent. The question must, therefore, follow: How did the respondent get the burn unless the pad was defective? It is not within our province to weigh the evidence or to speculate as to how the respondent was burned so as to support a finding on our part that the evidence, or what might reasonably be inferred therefrom, does not prove the pad was defective.
We have a situation where it appears: (1) An electric pad was applied to the limb of respondent; (2) *Page 649 it was properly applied, and the respondent was carefully supervised and attended while the pad was in operation; (3) no negligence on the part of the nurses who attended the respondent was shown; (4) there was no contributory negligence claimed or shown on the part of respondent; (5) the switch on the pad was either on low (maximum temperature 110°) or the current was turned off; (6) this type of pad, if in good working order and properly applied, and particularly when set on low, will not burn a patient; and (7) the pad, while insulated by turkish towels, did burn the respondent.
It seems to me that the only rational answer is that either the pad itself or the switch was defective and the pad became overheated while on "low," or while turned off, or both, and caused the burn, and that this situation furnished ample grounds for the jury to find that the pad used was defective. Circumstantial evidence is often more cogent than evidence depending upon the veracity of a witness and very often more accurate results are capable of being obtained by inferences that may be drawn from a set of circumstances than from direct testimony. Many facts can be more accurately established by a process of elimination than in any other way, and many times this is the only way a fact can be established. This case has all these factors to a marked degree.
I think it may safely be said that, when an electric pad is claimed to be defective, and it appears that it will not burn a patient if it is in good order and properly applied, and a jury finds from the evidence that the pad was properly applied and carefully supervised and attended, and the fact is established that the patient did get a burn from the pad, there is then ample basis upon which the jury can proceed to determine whether the pad was defective; and the court *Page 650 cannot at this juncture intervene and say as a matter of law that there is neither evidence nor a reasonable inference that may be drawn therefrom that the pad was defective or that to so say would be purely speculative.
When one is using an instrumentality that is safe, unless it contains some latent defect that makes it dangerous, and the manner of its use is such that, in the ordinary course of events, no harm will result, and, in using it, harm does come and the nature of the harm is that which results from a certain kind of latent defect, are we not entitled to conclude that there was such a defect therein? In so doing, we are not guessing or indulging in speculation. This is only done when a conclusion is arrived at that has no basis for its support or where there may be more than one cause of a given effect and it is as likely that the particular occurrence happened from one cause as another. But, when we do have such a basis as I have just outlined or as is developed by this record, and, of the two causes possible, one is conclusively eliminated by the evidence (or, as in this case, by the verdict of the jury), do we not have the right legitimately to conclude and infer that the effect was due to a certain cause? Whether an instrumentality is defective is essentially a question of fact, and, if the defect is latent and the instrumentality itself is not available so that it can be dissected or otherwise tested (as was the case here), it does not bar the complaining party from proving the defective condition by circumstantial evidence and by a process of elimination. The weight and sufficiency of such evidence is for the trier of fact to determine.
From a reading and study of the majority opinion, I cannot help but feel that the court is viewing this case from a factual standpoint, especially in view of the argumentative discussion therein. Much that is *Page 651 said is foreclosed by the verdict of the jury. I feel that the record does not warrant the assertion:
"That the only possible cause of the burns, the negligence of the nurses being eliminated, was a defective pad, is demonstrably untrue. . . . To our minds, there is no consistent chain of circumstances shown by the evidence by which the cause of Mrs. Jankelson's burns can be determined. Every avenue of approach ends in mere speculation."
It seems to me that, when the question of negligence on the part of the nurses is eliminated and the chain of circumstances leading up to the burn sustained by the respondent is considered, we have here a situation where a conclusion may be drawn by a trier of fact as to whether the pad was defective, and that this is not a question of law for the court.
The trial judge declined to grant a motion for a nonsuit, overruled a motion for a directed verdict, and denied the alternative motions for a new trial and judgment notwithstanding the verdict; and, in so doing, I think he was correct, and that the judgment should be affirmed.