delivered the opinion of the court March 28th, 1887.
This was an action of case against a physician for negligence in the treatment of a fractured leg. The plaintiff, who was about eighty years of age, sustained a compound comminuted fractu're of both bones of his leg between the ankle and knee. No complaint is made of the treatment of the fracture, as the plaintiff was entirely cured in that respect and in the usual time. The broken bones were re-united, the leg was straight and of the same length as the other one. It was admitted that the defendant treated the fracture with care, skill and entire success. This element of the treatment is therefore entirely out of the case. The claim for damages is based only upon an allegation of negligence in the treatment of an ulcer which developed upon the plaintiff’s heel and resulted in a sloughing of the flesh which was not cured by the defendant and occasioned pain and suffering to the plaintiff. The plaintiff was taken away from the treatment of the defendant by his daughter, Mrs. Eck, about six weeks after the accident, and was subsequently treated for about eleven weeks for the ulcer in the heel, apparently with indifferent success. Whether he would have recovered from the ulcer if he had remained under the defendant’s treatment cannot be known, because the ulcers only broke out in the third week, and the plaintiff was taken from the defendant’s care at the end of the sixth week. This, of course, produces an element of uncertainty in the plaintiff’s case since it becomes complicated with the question as to whose treatment, if any, was at fault for the non-recovery of the ulcer *606iii the heel. It was entirely undisputed that several ulcers broke out on the leg and heel of the plaintiff, but those on the leg appear to have recovered under the treatment of Dr. Reber, the defendant, and the only one as to which complaint is made is the one on the heel. It was testified by all the physicians, including those called by the plaintiff, that ulcers are of common occurrence in persons of extreme old age, often without any apparent cause. Thus, Dr. Loose, one of the plaintiff’s medical witnesses, testified: “ Ulcers are common occurrences in people of extreme old age without apparent cause; the ulcers we find usually in aged people are caused by stagnation of the blood; in aged people the valves of the superficial veins are apt to give out, and the blood, instead of going vigorously, stagnates and produces varicose veins, and these produce ulcerations. In a vitiated condition of the blood a scratch may make a very bad ulcer.” Dr. Cleaser, another of plaintiff’s experts, testified: “ In extreme old age ulcers not unfrequently develop without any apparent cause; the cause may be in the blood itself, so that an ulcer may be developed without a bruise. If it is attributable to any particular cause, when yon remove the cause the ulcer will heal.”
Dr. Sterly, who treated the plaintiff next after the defendant, being called by the plaintiff, said: “ Sometimes the least irritation or pressure upon certain parts — especially the lower limbs — will produce ulceration in aged people, and sometimes ulcers will form or develop themselves, you might say spontaneously, without any apparent cause, arising from mere poverty or depravity of the blood; not depravity so much as a want of vital power; and ulcers formed from such constitutional cause are likely to continue and resist efforts to heal, and are described as indolent ulcers ; you find them frequently in aged people.”
The defendant and all his medical witnesses testified to the same effect, and it was an entirely undisputed fact that in aged persons ulcers are developed by very slight causes, and frequently by no apparent cause, in which case they are attributable to low vitality and poverty of the blood.
In addition to this, the defendant and his medical witnesses all testified that wet applications upon the parts affected would so soften and shrivel the skin as to produce ulcers, and it was also proved both by the defendant and the persons attending the plaintiff, that wet applications were made to the plaintiff’s heel repeatedly by the direct command of the plaintiff, and against the remonstrance of the defendant. The defendant alleged that in this respect the plaintiff was guilty of contributory negligence.
In this condition of -the testimony it is evident that the case *607should have been presented to the jury upon the question as to the cause of the ulcer in the heel and the character and effect of its treatment by the defendant. The jury should have been told by the court that under the testimony there were several different possible causes for the ulcer, to wit: 1. Extreme old age and poverty of the blood. 2. Irritation or pressure upon the heel. 3. Wet applications upon the heel. 4. A low state of vitality in the patient. For the first,' third and fourth of these causes the defendant would not be responsible. For the second he would be responsible if he negligently and improperly applied undue pressure to the heel. This should have been carefully explained to the jury, and their attention should have been'called to the evidence on both sides relating to this subject. Having read the whole of the testimony with the closest care, I am constrained to say that the great preponderance of the evidence is to the effect that no such pressure was applied. Then the jury should have been distinctly charged that if the plaintiff were himself guilty of contributory negligence in producing the ulcer he could not recover.
It was not enough merely to state this as a general proposition — the meaning of contributory negligence should have been explained to the jury, as it related to this particular case, and they should have been told that the defendant alleged and gave evidence to prove' that the plaintiff had himself given directions to have wet applications made to his heel, and that if these produced or tended to produce the ulcer, he was guilty of contributory negligence and could not recover. As the testimony given by the defendant on this subject was not con-, tradicted, but was strongly corroborated by the testimony of other witnesses, its force was greatly enhanced and the attention of the jury should have been called to this aspect of the case. From whatever cause the ulcer was produced the attention of the jury should have been directed to the treatment administered by the defendant. Was it proper and skillful, ■ or improper and negligent, and if so, in what respect? The doctors do not seem to have differed as to what would be the correct treatment, and the question would be whether that kind of treatment was administered. For if it were the defendant would not be responsible if the plaintiff did not recover. Doctors are not required to insure the recovery of their patients, but* only to treat them with adequate care and skill.
These views indicate what, as it seems to us, was the proper maimer of presenting this case to the jury. An examination of the charge compels us to say that it was not so presented in any respect.
On the subject of contributory negligence no explanation of *608its meaning was given, and not the slightest allusion was made to the large amount and uncontradicted character of the evidence tending to show such negligence. This was misleading and, therefore, error. Nor was the precise question at issue at all explained to the jury. That question was : How was the ulcer on the heel produced? Was it by natural causes, such as the great age of the plaintiff, the stagnant or impoverished ‘condition of his blood, or a low state of vitality pervading his system ? Or was it the result of any possible bruise received at the time of the accident, and not externally manifest? Or was it produced by an undue pressure upon the heel, applied by the negligent conduct of the defendant ? In this latter case only would the defendant be responsible for the fact of the ulcer, and the jury should have been so instructed, but were not. Then the character of the treatment administered should have been presented. Was it such as was usually given by physicians of competent skill and care ? ' Or was it unskillful, inadequate and negligent ? Attention should have been called to the evidence not upon one side only, but upon both sides of this question. We think the charge is justly subject to unfavorable criticism upon all these points, so much so that we cannot regard it as an adequate presentation of the case to the jury, and must therefore treat it as erroneous.
On the trial exception was taken to the allowance of a hypothetical question, put to the physicians by plaintiff’s counsel, on the ground that it assumed a state of facts not proved in the testimony. The part of the question objected to is thus expressed: “And the entire leg in this condition, resting mainly upon its heel for several weeks without being changed, or receiving any care or any other attention at the heel, what, under such circumstances and conditions, would likely be the effect upon the heel ? ” A careful examination of the testimony compels us to say there is no evidence which supports this hypothesis. It includes the idea that for several weeks the heel received no care or attention, and to that no witness-testifies. The plaintiff says that in a few days after the accident- the heel pained him and he complained of it to the defendant, who placed something under it and got some salve or wash which he applied. Mrs. Eck did not see her father until the fourth day after the accident, and during the first four weeks, the period covered by the question, she was only at the house part of the time; and both her testimony and that of the other persons relied upon by plaintiff on this subject, was merely negative and goes for nothing against the positive testimony of the defendant and of the plaintiff’s son, Charles Herring, and his wife and daughter, who were present all the time and personally attended the plaintiff, and testified to the *609constant treatment of the heel as well as the leg by the defendant. The question also assumes that the leg was “resting mainly upon its heel for several weeks without being changed.” This also is an unproved fact. The plaintiff did say that he laid on his back with the heel resting on the board pretty hard and in a few days it began to burn and hurt. But he also says he informed the doctor of it and the doctor put something under it and got some salve and rubbed the heel with it a number of times. He does not say the leg continued to rest on the heel for several weeks, and his own witnesses prove the contrary. Mrs. Eck says, “ The leg was resting in the box, but the whole heel you could see below the box and the bottom of the foot.” Dr. Sterly said that when he saw the plaintiff on May 31st “ the fracture-box did not reach the heel, and the heel was resting upon a pillow.” The defendant and his witnesses all said the heel was resting on a pillow or on cotton. - Mrs. Charles Herring, plaintiff’s daughter-in-law, said the doctor “ put a cushion in the box, fixed it and put the leg in, but not so that the heel rested ; ” that the doctor “came every day, opened the leg every day and looked after it and washed it, put a new bandage around it and put it in the box again......He washed the leg from the fracture down to the be'el and washed the heel also.” She also said the heel did not rest on a board. There was much other testimony to the same effect which it is not necessary to repeat. But it is very clear that the assumptions upon this subject contained in the hypothetical qiiestion we are considering, are not proved by any testimony, either in words on in substance, and this assignment of error is therefore sustained.
The language of the charge covered by the second assignment is still more objectionable. None of the doctors said “ that the inflammation and sloughing followed in consequence of the want of proper care and skill upon the part of the doctor,” yet the court distinctly charged the jury that they did so testify. In such circumstances such charging is the gravest error.
The language covered by the third assignment is ambiguous, because it implies that the testimony of the defendants physicians, in answer to the defendant’s hypothetical questions, proved that, upon the facts there stated, there was evidence of negligence and want of care. Of course, this was not so, and the learned judge probably did not so intend, but the words he used are liable to that construction, and are therefore misleading. The hypothetical question complained of in the fourth assignment was a very exaggerated presentment of the testimony of one witness, Mrs. Eck, contradicted by every other witness in the case, as to the number of maggots that *610were seen, yet, as she did use language of such a character, we could hardly reverse on the ground that there was no supporting testimony at all. It was certainly not an impartial presentment of the testimony in relation to the maggots, to repeat to the jury the highly sensational exclamation of Mrs. Eck in regard to her father being eaten up with worms, without also stating that the other witnesses testified- to a far less number than she did; and in this respect the charge was misleading, and the fifth assignment is sustained. The sixth and seventh assignments are both sustained, for the reason heretofore stated. It was most clearly proved, and not at all contradicted, that the plaintiff insisted upon having wet applications made to his heel, and that it was done solely at his instance and against the positive instructions of the defend-, ant. Yet no allusion -was made to this testimony in the charge, nor was it in any manner explained to the jury that such conduct on the part of the plaintiff would, if believed by the jury, constitute or tend to prove contributory negligence. A mere statement of the general doctrine as to the effect of contributory negligencé, without any application of it to the facts of this case, was of no moment at all, and might as well have been omitted entirely.
We are also of opinion that undue prominence was given to the subject of the maggots — all the physicians concurred in saying that they were of very common occurrence, that they were the result and not the cause of the ulcer, and that they are easily removed. The defendant and Mrs. Charles Herring said there were very few of them, and that they were removed at once. They also testified that when the plaintiff was taken away from Charles Herring’s house the ulcer on the heel was already healing, and that the defendant protested against such removal, and declared that he would not be answerable for the consequences. The attention of the jury should have been specifically called to this testimony and to its effect upon the plaintiff’s case if believed. If it' were true, it is difficult to see how the plaintiff had any case. At his great age, with so severe and complicated a fracture entirely cured, as is expressly admitted, with several ulcers which the age, or the low vitality, or the impoverished blood of the plaintiff might easily and naturally produce, all healed, and with only one remaining ulcer, and that fairly recovering, if the defendant’s testimony is credited, there would seem to be no cause of action against the plaintiff. We are unable to discover any evidence in the record that the treatment actually administered by the defendant, either to the fracture or the ulcers, was negligent or unskillful, while, on the contrary, there is abundant and uncontradicted testimony that, so far as the ulcer on the heel *611is concerned, the plaintiff was guilty of contributory negligence. Judgment reversed.