Binns v. Emery

Citations

• 45 Wash. 215
• 88 P. 133
• 1907 Wash. LEXIS 445

Syllabus

<p>New Trial — Grounds—Newly Discovered Evidence — Sufficiency of Showing. In an action for malpractice in the treatment of severed tendons and nerves, in which the complaint alleged negligence nine days after the wound was dressed and nearly healed, in recklessly removing stitches and in the subsequent treatment, it is error to deny a motion for a new trial on the ground of newly discovered evidence, when it appekrs by the affidavit of the defendant that the only time he had removed stitches was at his office after the plaintiff had left the hospital and he supposed that the same would be relied upon by the plaintiff, that at the trial the plaintiff had claimed the occurrence to have taken place at the hospital, and it appeared by the affidavits of three witnesses that they had been present at every treatment at the hospital and that no stitches had been removed, and that they would so testify on another trial, .it further appearing that two of such witnesses had removed from the state before the trial and their whereabouts was unknown to the defendant at that time, the third witness being a nurse and the defendant had not known that she was present at all of the treatments (Dunbar, J., dissenting).</p>