Defendants maintain that the issue of contributory negligence was properly submitted to the jury. Their major arguments will be discussed seriatim.
Defendants assert that plaintiff's failure to seek medical care for his continuing headaches, over an eighteen month period before his incarceration, constitutes contributory negligence. To sustain this argument would impose upon an ordinary layman a standard of care to which neurological experts must adhere. The Court will not hold plaintiff to such a strict standard.
Under the law of this case,
contributory negligence would constitute a defense in an action grounded on negligence. Raritan Trucking Corporation v. Aero Commander, Inc., 458 F.2d 1106 (3rd Cir. 1972). The defendant bears the burden of pleading and proving plaintiff's negligence and that such negligence contributed to the injury as a proximate cause. Dziedzic v. St. John's Cleaners & Shirt Launderers, Inc., 53 N.J. 157, 161, 249 A.2d 382 (1969).
Assuming that plaintiff did fail to seek medical attention for his headaches prior to incarceration in defendants' jails,
the Court nevertheless finds that defendants failed to meet their burden of establishing proximate causation, i.e., that had McCormick gone to a doctor with complaints of headaches, that the doctor would have diagnosed a brain tumor, ordered appropriate therapy, and saved the plaintiff's eyesight. The issue of causation was defendants' burden; it was not met. In fact, defendants' expert testimony tended to rebut that issue.
Dr. Scheuerman, defendants' expert, testified that on the basis of plaintiff's physical condition and complaints of headaches while incarcerated at Wildwood, the symptoms would not indicate any specific neurological problem (Tr., 12-8-76, at 163-165); that medical personnel would be "hard pressed" with such vague symptoms to consider a brain tumor, and that a neurosurgeon would not consider a brain tumor in the circumstances ( id. at 172-173). He further testified that only one out of 1000 of those visiting his office with complaints of headaches will have a brain tumor ( id. at 174).
Dr. Yaskin, another defense expert, testified that the tumor's climactic and fulminating point in clinical process was not reached until the plaintiff's imprisonment (at the onset of visual disturbances) so that when plaintiff was first imprisoned, he did not clinically present the symptoms which one would identify with a brain tumor (Tr., 12-9-76, at 127-128, 178). Dr. Yaskin did indicate that plaintiff was "insensitive" to his condition ( id. at 159), but this testimony does not tend to prove that an examining physician would have diagnosed a brain tumor previous to plaintiff's incarceration.
Thus, the record clearly indicates that defendants did not sustain their burden of proving plaintiff's contributory negligence, inasmuch as they failed to show proximate causation. Therefore, the Court erred in its instruction to the jury to consider plaintiff's negligence.
Where a prejudicial error of law is made, the granting of a new trial is an appropriate remedy. Wright & Miller, Federal Practice and Procedure, § 2805; See, generally, Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 251, 61 S. Ct. 189, 85 L. Ed. 147 (1940). In accord is the Third Circuit, which ordered a new trial where the evidence in a negligence suit could not sustain an instruction of contributory negligence. Morran v. Pennsylvania R.R. Co., 321 F.2d 402 (3rd Cir. 1963).
Defendants also contend that there was ample evidence of plaintiff's failure to make appropriate complaints of headaches while in jail to support a jury finding of contributory negligence. Although there is some evidence on record to support the above factual assertion,
it is inconceivable that plaintiff did not complain about a condition that within three weeks resulted in ultimate blindness. In any event, these proofs are probative of the issue of defendants' negligence (i.e., notice of plaintiff's condition) and not to the issue of contributory negligence.
Defendants further assert that McCormick's failure to pay his fine and obtain release constitutes contributory negligence. This argument is without merit. As the Court instructed, a jailer's duty to provide reasonable medical care is non-delegable. This duty attaches as soon as a prisoner is placed under the jailer's custody. A prisoner has no alternative in securing medical attention if a jailer fails in this regard. That McCormick may have had an opportunity to obtain his release by securing counsel, by being richer than he was, by having his parents pay the fine, by not going to Wildwood in the first place, does not alter the basic duty of the defendants. For as long as the plaintiff was in their custody, for whatever reason, whether rightly or wrongly, the defendants owed a duty to provide appropriate medical care. Thus, the failure of the plaintiff to secure his release does not constitute contributory negligence.
Finally, defendants contend that plaintiff's failure to obtain removal of his tumor immediately upon his discharge from Ancora supports an instruction of contributory negligence. There is no competent medical proof that had McCormick secured immediate medical attention after his release, the effects of his non-treatment until December 2, 1971 would have been reversible. Thus, defendants failed to meet their burden of showing proximate causation. Dr. Schut did testify that had the tumor been removed on December 3 or 4, 1971, plaintiff would have had a "much better chance than later on." (Tr. 12-1-76, at 86). However, the witness later clarified that the sight that would have been saved by an immediate operation was that of blindness in one eye and only the ability to count fingers (legal blindness) in the other (id. at 12).
Further, plaintiff did seek medical care from Dr. Seidel only a few days after his release and, on January 8, 1972, he was admitted to Jefferson Hospital for surgical removal of his brain tumor. Consequently, there were insufficient grounds to instruct the jury to consider plaintiff's negligence.
Inasmuch as the issue of contributory negligence was improperly considered by the jury, and it cannot be said it was without effect on the jury's verdict in favor of the defendant Wildwood, and on its face the verdict was confused and inconsistent with the Court's instructions, a new trial shall be granted as to both the City of Wildwood and County of Cape May.
Counsel may submit an appropriate order.