dissenting.
1. It appears from the opinion that the nurse, when *783upon the witness-stand, testified to her opinion as to the quality of the defendant’s technique. She testified that it was in her judgment not as good as other physicians’ in that neighborhood whom she mentioned.' By technique she meant the proper and necessary preparation, the cleansing of the wound and of the instruments, etc. If he did not attend to this properly he was negligent and would be liable for the consequences. The measure of the care required from him would be that which Avas recognized as necessary by the profession in that locality, so that when this witness stated her conclusion upon that point she appears to have stated the precise thing that the jury were called upon to determine. Generally, we have held such evidence to be prejudicial.
2. The third paragraph of the syllabus does not meet any contention of the parties. It is not insisted in the brief that the reply was insufficient. The point made in the brief is that the instruction of the court did not plainly state the issue. The court told the jury that the defendant denied the allegations of “neAV matter” in the answer, but did not tell the jury what those allegations of neAV matter Avere, and so did not tell the jury AVliat the plaintiff denied in the reply. This is the point made in the brief and is not determined in the opinion. This objection seems to be Avell taken.
3. Again, the discussion in the fourth paragraph does not meet the point raised by the defendant. He does not insist that these two instructions, taken together, do not correctly state the law. He admits that they do, but Avhat he says is that they state the law upon an issue that Avas not in the case at all, and that, under the circumstances, this statement was very misleading to the jury. This is the reason he criticises this instruction; that is, he objects to the court putting before the jury the issue as to A\iiether the plaintiff consented that the defendant should make an incision in the foot. And the objection seems to have merit.
4. The fifth paragraph approves of the instructions in *784bulk without mentioning them. The defendant asked the court to instruct the jury as follows: “The court instructs the jury, if you find from the evidence that plaintiff’s foot was infected at the time he first came to defendant for treatment, that such infection produced the injury of which plaintiff complains, and that ordinary care, skill and diligence on the part of the defendant would not have prevented such injury, then it is immaterial whether defendant used ordinary care, skill and diligence, and your verdict must be for the defendant.” The court modified the instruction by adding to it the following: “That is, if he used ordinary skill, care and diligence, considering that infection already existed, in caring for the same.” This modification made- the instruction unintelligible. The instruction, as offered, stated that it was immaterial whether the defendant used ordinary care, skill and diligence under the conditions recited in the instruction, and this modification tells the jury that this is so if he did use ordinary care, skill and diligence, considering that infection already existed. The instruction, as offered, was technically correct. I suppose it must be true that if the foot was so infected at the time that the defendant was first called that ordinary care, skill and diligence on the part of the defendant would not have prevented the injury complained of, the plaintiff could not recover. The court might have given another instruction, plainly stating the idea involved in the offered instruction, and so framed it that there would be no danger of misleading the jury. I think that this instruction, as modified, was erroneous.