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Colton v. Benes

176 Neb. 483 (1964)

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Colton v. Benes

Nebraska Supreme Court

176 Neb. 483 (1964)

Facts

C. E. Colton (plaintiff) and Matthew Benes (defendant) were in a car accident after Benes ran a stop sign. Colton’s back was injured. Colton saw Dr. House, an orthopedic surgeon, for his back injury. Dr. House testified at trial that Colton needed a fusion surgery on his neck that would cost $300, would require at least a week of hospitalization, would not be 100 percent effective, and had a reasonable chance of success. No evidence was presented at trial regarding the risks of the surgery or the pain and suffering that could be involved. Colton testified at trial that he wanted the surgery but could not afford it. Following trial, the judge gave jury instructions explaining that an injured plaintiff has a duty to take all reasonable care of his injuries and is not entitled to damages caused by his failure to take reasonable care. The judge further instructed the jury that the jury could consider factors other than a doctor’s recommendation in determining whether Colton should have followed the doctor’s recommendation for surgery, including the risks, the degree of seriousness and danger, the likelihood the surgery would improve rather than harm Colton, and whether other doctors agreed with the recommendation for surgery. The judge did not instruct the jury on whether a plaintiff’s ability to pay should be a factor. The jury awarded Colton $3,376.40 in damages. Colton moved for a new trial, which was not granted. Colton appealed, arguing that the judge’s jury instructions were not supported by the evidence.

Rule of Law

Issue

Holding and Reasoning (Brower, J.)

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