REPORT 
OF A TRIAL FOR 
ALLEGED MAL-PMCTICE, 
AGAINST 
DIXI CROSBY, M. D., 
PROFESSOR OF SURGERY, &.C., IN THE DARTMOUTH MEDICAL COLLEGE; 
IN THE 
WINDSOR COUNTY COURT, AT WOODSTOCK, 
MAY TERM, 1034, 
VERDICT FOR DEFENDANT. 
WOODSTOCK: 
PRINTED BY LEWIS PRATT, JR. 
1854. REPORT 
OF A TRIAL FOR \ / 
ALLEGED MAL-PRACTICE, 
aoainst 
DIXI CROSBY, M. D., 
Profesw of Sirrgery, Ac., in the Durtmimth Medical' College; 
TIfE 
WINDSOR COUNTY COURT, AT WOODSTOCK, 
MAY TEAM, 1BS4. 
so LIBRARY; ? 
VERDICT FOR DEFENDANT, 
WOODSTOCK: 
PRINTED BY LEWIS PRATT, Jr- 
1854, Nora.—The accident from which this suit resulted occurred in the Spring 
of 1845. By the statute of limitations in Yermont, a suit of this nature out- 
laws in six years. The writ was not issued until within two days of that 
time, i. e. tho Spring of 1851. The case was delayed in Court until May, 
1853. It was then allowed to come to trial, and a jury found who rendered a 
verdict against I)r. Crosby, and assessed damages to the amount of $800,00 
and costs. Dr. Crosby reviewed the case and the following report shows tho 
result of the second trial. PREFACE. 
Several reasons have influenced me in publishing the testimony- 
given in the trial for alleged mal-practice, in Windsor County Court, 
Vermont. So far as I know, it is the first suit ever brought against a 
consulting Surgeon, and the first, also, where there has been an at- 
tempt to make Counsel answerable for consequences or results over 
which he did not and could not have any control. This is the only 
way to bring to the knowledge of the profession the law and its inter- 
pretation, which defines the legal connection of physician and patient. 
To me it has been expensive knowledge—to the medical profession 
I hope it will be profitable. From the first I have had no doubt but 
that I should be honorably acquitted. My confidence has arisen from 
my belief in the honesty of the people, and from a correct public 
sentiment \ and whether this trial ends it or not my confidence Is 
unshaken. The testimony of the medical gentlemen who testified in 
the case, exhibits a degree of intelligence and fairness highly credit- 
able to their professional attainments, and honorable to their hearts. 
To my legal advisers, both on the former and last trial, I am under 
lasting obligation for their devotion and legal ability. 
To the press throughout the United States I am under peculiar ob- 
ligations for their many flattering notices, both of the suit and myself; 
the more gratifying to my feelings as they have been unsolicited and 
unsought. DIXI CROSBY. 
Hanover, N. II., Oct., 1854. WINDSOR COUNTY COURT, 
May Term, 1004.. 
Hon. ROBERT PIERPOINT, Chief Judge. 
IIon. Gardner Winslow, 
IIon. Barnabas Deane, 
Assistant Judges. 
Norman Williams, Clerk. 
® © 00 S3 3 IE H> o 
FOR PLAINTIFF. 
P. T. WASHBURN, 
J. CONVERSE, 
J. BARRETT. 
FOR DEFENDANT. 
P. DILLINGHAM, Jr. 
E. HUTCHINSON, 
O. P. CHANDLER. 
to ta Vo 
Loring Bemis, Plymouth. 
John Chedel, Pomfret. 
Alpheus N. Earl, Plymouth. 
Harvey W. Ellis, Stockbridge. 
Chapman C. Fiynn, Bethel. 
Moses Hall, Plymouth. 
John IIowe, Jr., Ludlow. 
Charles Hutchinson, Pomfret 
Samuel II. Leonard, Pomfret. 
Joel Marsh, Bethel. 
Oliver Tarbel, Cavendish. 
Setii Conant, Pomfret. TRIAL. 
The plaintiff’s writ and declaration were read to the jury, in which 
the defendant is attached to answer to the plaintiff as follows, viz.: 
** In a plea of trespass on the case, for that heretofore, to wit, at Norwich 
aforesaid, on the 12th day of April, A. D. 1845, the plaintiff had suffered and 
had a fracture of the bone of one of his thighs, which it was proper and neces- 
sary should be reduced, set, dressed, and treated for the cure thereof, by a sur- 
geon ; and the defendant then was, and for many years had been, a surgeon, 
and exercising and carrying on and practising the art, mystery and profession 
of a surgeon, and being so a surgeon as aforesaid, the plaintiff then and there 
employed the defendant, for a reasonable reward and compensation to be there- 
for paid to him by the plaintiff, to reduce, set, dress, treat and take care of the 
said fracture, and the plaintiff thereof to cure ; and the defendant then and there 
accepted said employment, and entered thereupon, and it thereupon became 
the duty of the defendant to set, dress, treat and take care of the same in a 
careful and skilful manner. Yet the said defendant so carelessly, negligently 
and unskilfully behaved and conducted himself in and about reducing, setting, 
dressing, treating and taking care of said fractured bone, and curing the plain- 
tiff thereof, and performed his operations of reducing and setting said frac- 
tured bone, and of applying his dressings thereto, and of treating and man- 
aging the same, and treated and managed the plaintiff therefor in so careless, 
negligent and unskilful a manner, that, for want of due skill and care of de- 
fendant, and by and through the negligence, unskilfulness and default of the 
defendant in that behalf, the said fractured bone was not properly set and 
dressed, nor properly treated and taken care of, and the same did not unite 
and join in a due and proper manner, but on the contrary thereof, the frac- 
tured ends thereof were suffered to, and did lap by, and upon each other, and 
so grew and became united, and thereby the said limb of the plaintiff became 
and is much shortened and otherwise deformed, and lame, sore and weak, and 
the plaintiff has thereby became and is rendered lame and crippled permanently 
and for life; and also in applying and continuing the apparatus and dressing 
for said fractured limb by the defendant, great and needless pain and suffering 
were caused to and endured by the plaintiff, for a long time, to wit, three 
months, and also large and painful ulcerations, sores and sloughing of the 
flesh were caused and produced upon both the legs, feet and ankles of the 
plaintiff, whereby he suffered needlessly great pain and torture, and was a long 
time confined and disabled, to wit, one year, and has ever since been and still 6 
REPORT OF A TRIAL 
is soro and lame and suffering great pain, and has been put to great expense 
in and about the euro of the same, to wit, three hundred dollars, all which is 
to the damage of the plaintiff, as he says, the sum of five thousand dollars, for 
the recovery of which, with just costs, the plaintiff brings suit.” 
Mr. Converse opened the case for the prosecution as follows: 
Perhaps you may be better able to understand the application of 
the testimony if I make a statement of what we expect to prove. In 
the first place, gentlemen, we shall attempt to prove that Mr. Slack 
was at work for a railroad company or on some highway; that thero 
was a bank of earth that fell upon him, and this was on the 12th day 
of April, 1845, if I do not misrecollect; that the bank of earth over- 
whelmed him and covered him up entirely. He was, however, re- 
moved and taken to a neighboring house, Mr. Estabrook’s. Physicians 
wero immediately called and among others Dr. Crosby. We shall 
show to you that Dr. Crosby at that time was a little unwell, and that 
when the messenger went to his office he said he was very ill, but 
Dr. Brown, a neighboring physician, was supplied, went over and 
there saw Dr. Davis. They made an examination of Mr. Slack, and 
found him injured and one of his legs broken. They thought it ad- 
visable to go and consult Dr. Crosby. They did so, and the doctor 
concluded to ride over and I believe went o-vdr that night- Conversa- 
tion was had among the surgeons about the treatment, and what splint 
or apparatus to be applied. Dr. Crosby recommended a certain kind 
of apparatus called Gibson’s Splint. [Here Mr. C. exhibited a draw- 
ing of the apparatus and gave a description of it.] We expect to 
show to you, gentlemen, that that was the kind of dressing recom- 
mended by Dr. Crosby, and fell in with by the other surgeons as a 
matter of course, if recommended by him; that the Dr. went over 
the next morning, this being Saturday evening, a mechanic being 
employed in manufacturing the instrument. He went over the next 
morning and first directed some alteration which the mechanic made ; 
he (Mr. Slack) was put in the splint I described, by Dr. Crosby ; his 
feet and ankles soon became very much ulcerated so that he could 
get no rest. Both feet were in that situation, as I am told, for twenty 
days; then they became so bad that they released the foot of the 
well leg, still they let the other remain until it became insufferable. 
Then it was, after some thirty odd days, Mr. Slack being desirous to 
go home to his own house, was taken by some of the neighbors and 
carried home. FOR ALLEGED MAL-PRACTICE. 
7 
That it will appear to you, gentlemen, I believe, from the testimony, 
that his feet and ankles were so badly ulcerated that,—I am not a 
medical man and cannot give any technical name,—but the heel came 
off, and, in short, so bad that he could not bear the pressure any lon- 
ger without severe torture. The result has been, gentlemen, that Mr. 
Slack has got able to bo about, but that limb is from two and a half 
to three inches shorter than the other, and now there are still ulcers 
on the feet which are most of the time troublesome. We will satisfy 
you that before this accident Mr. Slack was a man of uncommon 
health and constitution. No man was able to perform more labor 
than he. Since then he has been able to do but little labor, and 
probably will always remain thus. 
Mr. Chandler opened the case for defence as follows: 
We expect, gentlemen, to prove that, after the accident to Mr. 
Slack happened, Dr. Crosby was applied to by some messenger who 
went of his own accord ; that the Dr. at the time was unwell and not 
in a condition to go out; but a physician in the neighborhood, Dr. 
Brown, happened at that time to be in the doctor’s office, and it was 
suggested that he could go; whereupon the messenger requested him 
to go ; that Dr. Brown went to Mr. Estabrook’s, where Mr. Slack had 
been removed, and there found Dr. Davis; that Dr. Davis was the 
family physician of Mr. Slack, and was at that time treating a case 
in his family, and was a family connection ; that Drs. Brown and 
Davis made an examination of Mr. Slack and endeavored to ascertain 
the nature of the fracture, and they came to the result that it was a 
fracture which the physicians term a “ double fracture of the thigh 
bone,” and perhaps a compound fracture. To adopt our own lan- 
guage, the bone near the thigh was broken in two places.—one near 
the neck of the thigh, and the other a few inches below, where two 
important muscles come into this part of the body. That this was 
broken in such a manner that the bone very nearly protruded through 
the skin, and the enquiry was what should be done ? They had no 
proper appliances, such as splint, &c., and they concluded to go to 
Dr. Crosby’s office and consult him, and, if they could, obtain the 
necessary appliances. They went, and the question arose there as 
to what kind of splint was best adapted to this case. They examined 
a book and plate of a splint of Dr. Gibson of Philadelphia. They 
found in this book, which is of standard authority and fully relied 
upon by the profession, a plate of a splint. They examined and con- 8 
REPORT OF A TRIAL 
sidered the matter, and all three of them came to the conclusion that 
it was the best splint to be adopted in this case. That Drs. Brown 
and Davis returned to Estabrook’s, after importuning Dr. Crosby, if 
possible, to come over and consult with them. lie did so, and it ap- 
peared when they made the examination that it was not thought prac- 
ticable to put the patient on the splint at that time. When Dr. Crosby 
was about to leave, these physicians entreated him to return the next 
day and assist in putting tho patient on the splint. They applied to 
some mechanic, who made a splint conformable to tho one laid down 
in the book. On the next day, all three physicians being present, 
Mr. Slack was put into the splint in all respects prepared to remain in 
the splint in such a manner as was laid down in the work referred to. 
In respect to tho splint, gentlemen, we expect it will appear from tes- 
timony of men of established authority, whose depositions we shall 
present to you, that it was fully and properly applicable to the case. 
We expect it will appear to you from the testimony of physicians, 
that it is proper that a physician shall seleet such a splint as he thinks 
most applicable. 
We expect to make it appear to you that it is a practice among 
physicians and surgeons, that persons who are under treatment for 
fractured limbs like this, should not be removed from the splint within 
a certain time after being placed on it. But in a much shorter time, 
contrary to the advice of Dr. Davis, the friends of Mr. Slack took him 
off of the splint and carried him on their shoulders to his home, a 
distance of three miles. We shall prove that, at the time he was 
taken off of the splint he was doing well. We shall prove in relation 
to the sores,—not precisely the time when they first appeared,—but 
that, whilo under treatment at the house of Estabrook, Mr. Slack 
refused to allow the proper appliances to remain, and that he was in 
the constant practice of having his foot and ankle wet. This might 
be the cause of his feet becoming sore. We expect to show, that 
when Dr. Crosby was applied toy it was only to assist these other phy- 
sicians in putting him upon the splint, and that he never was applied 
to afterwards; that Mr. Slack never expected his services afterwards; 
that Dr. Davis was the family physician, and did remain in attend- 
ance with the approbation of Mr. Slack himself; and that Dr. Crosby 
had nothing to do with the case, whatever, after he assisted in putting 
Mr. Slack on the splint. And we affirm that, whatever the after 
treatment might be, it should not be chargeable to Dr. Crosby, FOR ALLEGED MAL-PRACTICE. 
9 
TESTIMONY FOR PLAINTIFF. 
E. M. Lewis, called. On the 12th day of April, 1845, there was 
an alarm that Mr. Slack was buried in the sand. I went up to the 
gulf, some 50 rods from the house. They had just dug him out. 
He was, I think, doing a job there for the town. I was requested to 
go for a doctor. Got one of my horses and went over to Hanover, 
saw Dr. Crosby, found him out of health. Told him Mr. Slack had 
got hurt and wanted he should go over immediately. He said he 
must be excused for he was sick and just getting about, and could not 
possibly go. The accident happened about 50 rods from Hanover 
bridge. Dr. Crosby lived a little over half a mile from the bridge. 
Dr. Crosby said he would send Dr. Brown over. When I got back 
to Estabrook’s, I think I found Dr. Davis there. Should think Esta- 
brook lived some twenty rods from the bridge. They were just car- 
rying Mr. Slack into the house as I got back. Dr. Brown came over, 
and after a while Drs. Brown and Davis talked the matter over, and 
thought it a critical case, and they thought they would go for Dr. 
Crosby. I recollect Dr. Davis said “ if one could not fetch him two 
could.” They went for him and he came over, I should think in the 
course of an hour. I saw him. I believe something was said about 
a splint, but cannot recollect what. I was there frequently during 
the sickness of Slack. Think I was in the next day. I was not in 
the room when Mr. Slack was put upon the splint. The first time I 
saw him afterwards his feet were elevated higher than his head, and 
I believe lashed up with gaiters. Did not examine them closely. In 
January 1849,1 think it was, I had some conversation with Dr. Crosby. 
I had before heard Mr. Freeman, Dr. Crosby’s agent, request pay 
from Mr. Slack, and he refused to pay anything. In the conversation 
I had with Dr. Crosby I told him that Slack said he never would pay 
unless upon the tail end of an execution. That Mr. Slack was very 
much excited about it, and asked why he didn’t sue him. 1 told Dr. 
Crosby that if he rendered him services he would pay, for Slack was 
good for it. Dr. Crosby said he considered him ungenerous and an 
unreasonable man, but that the time that would be expended in col- 
lecting it might be applied to better purposes; and said that, if he 
did not stop circulating erroneous reports, he would not only collect 
the bill but make him suffer for slandering him. I think I saw the 
bill ; I believe the bill was for attending on Slack. Don’t know how 10 
REPORT OF A TRIAL 
much it was. I think it was light. My impression is that it was for 
more than one visit, but cannot say as to that or its amount. 
Cross examination. I think I went to Dr. Crosby’s office by re- 
quest. Mr. Slack did not ask me to go, he looked like a dead man. 
They told me to go for Dr. Crosby. Took out my horse, did not use 
a saddle. Presume some one started for Dr. Davis, but do not know. 
Dr. Davis lives a little more than a mile and Dr. Crosby little more 
than half a mile from the gate. Think Dr. Davis married Mr. Slack’s 
sister. When I went to Dr. Crosby’s office I told him I wanted him 
to ride over for Mr. Slack was injured. Dr. Crosby looked as though 
he was in feeble health, and not like a man who had been lately out 
or soon to go out. He said Dr. Brown was there and he would send 
him over immediately. Do not recollect of seeing Dr. Brown. Do 
not think I went in. 
James S. Currier, called. Lived in 1845 at Norwich, a mile 
from Hanover Bridge. Sunday morning I started for Hanover. Mr. 
Slack’s brother William, who is dead now, overtook me. Rode down 
with him. I saw him then. It was the first time I saw him after he 
was hurt. Soon after I got there Dr. Crosby came into the house. 
This splint was brought in from the shop room, as it was so called. 
Could not say by whom it was brought in. Mr. Slack was fixed to 
have the splint put under him. One or two persons tried to draw the 
gaiters up to the spot to be fastened. They did not appear to have 
strength enough to do it, and I was called upon by Dr. Crosby to do 
it. The Dr. turned round to me and said : “ You are strong.” He 
wished to have me help draw the gaiters up. I did so, and held them 
until they were fastened. There was a cord or string through the 
bottom of the gaiters. [Witness explained the apparatus used, by a 
plan.] Drew both feet up till my arms ached. The gaiters covered 
his feet all over. They were made of canvas, I think. Think there 
were holes in the upper board of the splint. Don’t know who made 
the splint, supposed it was Estabrook. Saw the gaiters put on. They 
fastened to the feet and all over the bottom. Could not tell whether 
they were laced or sewed up. Could not say as they extended above 
the ankle. Dr. Davis, Geo. C. Hutchinson and Mr. Estabrook were 
present. Mr. E. was a joiner. Should not dare say any others were 
present but Dr. Crosby, unless Mr. Slack’s brother was there. Dr. 
C. is all I know of who directed placing Mr. S. in the splint. Think 
I remained there an hour or an hour and a half. I left before Dr. C. FOR ALLEGED MAL-PRACTICE. 
11 
did. He overtook me just above the toll gate on Hanover side. I 
asked him if he thought Mr. S. would live; he said he could tell bet- 
ter in a day or two ; think this was his answer. He thought he would 
get along if he was not hurt inwardly. He gave me to understand 
that he could not tell until twenty-four hours had elapsed. Could not 
tell whether I asked him or he asked me about the splint. He said 
he had never tried it before. He said it was just the thing for such a 
man as Slack was. He said Slack was a stout man and the splint 
was stout too. 
Cross examination. When I had conversation with Mr. C. he said 
he thought there was an even chance for Mr. Slack to get well. 1 
asked him if he did n’t think Mr. S. made more touse about it than 
other folks would. I told him I would not make such a fuss. Under- 
stood him to say the kind of splint was applicable to the fracture Mr. 
S. had. He did n’t say that it would not be applicable to a weak 
man. Think I did not testify at the last trial about its being applica- 
ble to a stout man. When I had the conversation with Dr. C., I told 
him that whenever he, Slack, got hurt, when he was a lad, he made 
more touse about it than the other boys. Do not feel any interest 
about this case. Believe Mr. Dudley wanted me to make a bet about 
it; told him I was a witness in the case. Don’t know but I said I 
would not be afraid to bet if I was not a witness. Dr. Davis was 
present when we put Mr. S. on the splint. Don’t remember about 
his putting on the gaiters. Do not know as I applied more force than 
was necessary; I applied enough to raise the feet to the foot-board, 
and no more than was necessary to hold them there. 
By Mr. Converse. Mr. Dudley lives at Hanover. Think I ap- 
plied equal strength to both feet. 
George C. Hutchinson, called. Resided at the time of this ac- 
cident at Norwich Plain. Was down to Mr. Estabrook’s Sunday 
morning. Found Mr. Slack taking on pretty bad. Assisted in put- 
ting him in the splint. Mr. Currier, William Slack, Drs. Davis and 
Crosby were present. Saw a splint there which they were going to 
use. They said Mr. Estabrook made it. Never saw one before. 
Dr. Crosby I think came into the room with gaiters in his hand, and 
spoke to one of us. Dr. Crosby said the splint was a new thing to 
him and he never had used one before, but that Mr. Slack was a 
good subject for it and he meant to give it a trial. He said he was a 
strong man, and he thought a good one for that instrument. When 12 
REPORT OF A TRIAL 
it was carried into the other room, I went in and assisted in putting 
Slack into it. Saw the gaiters put on. Dr. Crosby spoke to Mr. 
Currier and asked him to take hold, as he was the strongest man in 
the room, and assist them. 
Cross examination. Think Dr. Davis put on one gaiter and Dr. 
Crosby the other. Think Mr. Currier had hold of both legs. Think 
he reached over the board and had hold of the feet. 
By Mr. Converse. Some one, I think, tried to draw up the feet 
before Mr. Currier was called upon, but cannot tell who it was. 
Mrs. Olive Blaisdell, called. Heard Drs. Crosby and Davis 
talking together at our house about two weeks after Mr. Slack was 
hurt. They were speaking as to how uneasy Slack was. Dr. Crosby 
said that he was of a very strong constitution, and was a very good 
subject to try an experiment upon. 
Cross examination. Davis came to the house before Crosby. Dr. 
D. was doctoring my husband,—I was out and in to the room. This 
was all I heard. Think it was Dr. Crosby who spoke first about 
Slack’s being restless. Spoke about this conversation about a year 
ago at the house of Charles Hatch. Do not know as I have said any 
thing about it since. Don’t know but I have mentioned it to some 
one with Mr. Hatch. Spoke about it to Mr. Slack. He came to me 
to know what I knew about it. It was three or four weeks ago. 
Don’t expect I heard all the conversation between them. Don’t rec- 
ollect about their saying anything about the propriety of adopting the 
splint. Did not testify before in this case. Geo. C. Hutchinson is a 
cousin of mine. 
George Slack, called. Am a brother of Lorenzo Slack. Saw 
him just after he was carried into Mr. Estabrook’s. Stayed but a 
short time. Saw him again Sunday morning. Cannot tell the exact 
time of arriving, perhaps as late as eight o’clock. It was before he 
was put on the splint. Saw Dr. Crosby there. Cannot tell whether 
he arrived first or not. Cannot recollect whether I saw Dr. Crosby 
there the night before. Did not see my brother put into the splint. 
Went out on the bridge. Thought it would be rather a painful opera- 
tion, and didn’t like to see it. Saw him immediately after he was 
put into the splint. Mr. Estabrook made it. He was at work on it 
Sabbath morning when I got there. The question was asked how 
long he would have to lay there. Think Dr. Crosby told the number 
of days, but cannot remember how many. My brother asked him FOR ALLEGED MAL-PRACTICE. 
13 
when he might begin to count. He said, “ you may begin today.” 
Think Dr. Crosby said in so many days he would get out with a 
good leg. Watched with my brother five nights at Estabrook’s. 
Should not think the first time I watched with him was more than a 
week after he was hurt. Think it was a week from the day he was 
put into the splint. He didn’t rest any the first night I watched with 
him. He complained of pain in his feet and ankles, and well leg; 
but not at the place where the limb was broken. He complained of 
heat and burning in his feet and ankles. There were holes cut in 
the gaiters for his ankle bones. Do not know whether they were cut 
on the top of the instep or not. One night I remember more particu- 
larly, the pain seemed to be in his well leg. Mr. Daniel Currier 
watched with me that night. We had heated flannels and a free- 
stone, and wrapped the flannels round his leg, and held them as hot 
as we could. Could not tell whether this was the first night or not. 
Think it was not. Was with him frequently during the day. Can not 
tell at what time he was removed, or how short a time it was after I 
watched. I watched with him at other times. He complained every 
time of pain in his feet and ankles. Saw his ankles were sore. 
Think the second time I watched with him the pain was in his limb. 
Cannot remember how soon it was I watched with him the second 
time. Cannot tell what time he was removed but think it was the 
first of June or the last of May. Saw him when they got along by 
my house. They had to pass my house in going from Estabrook’s 
to Slack’s house. Should think it was three miles and a half from 
his house to Estabrook’s. He was carried on a sort of litter, on 
men’s shoulders. It resembled a bier. Went with them from my 
house to his. Did not remain there a great while after they got him 
home. Staid till after the rest went away, and till they got supper. 
Cannot remember the state of his feet or ankles at that time. When 
I watched there, thin matter ran from his heels. Cannot tell how 
long it was before he got out of doors, but when he got out he was 
pretty feeble, and went on crutches until Fall or Winter. Think he 
used a cane after that all winter. Have seen the feet and ankles 
occasionally; have seen them today; every time I saw them there 
were sores on the heel. Brother’s health was remarkably good be- 
fore the accident; never knew him to be sick a day before he was 
hurt; think I heard him say once he had the headache. He was 
more than a middling man for labor; can do a pretty good day’s 14 
REPORT OF A TRIAL 
work now, but not as much as before he was hurt. At the time I 
applied warm flannels the pain continued all night. 
Cross examination. Think I made use of the same terms when I 
testified before of what Dr. Crosby said about the number of days 
my brother would have to remain in the splint. I think I watched 
with brother for the first time a week from the Sunday after he was 
hurt; never took his feet out of his gaiters; have sometimes loosened 
them four or five times in a night; do not recollect of loosening the 
fastenings of the footboard more than once or twice; cannot tell how 
often I loosened the cords. Have bathed the feet with a preparation ; 
supposed it to be rum and water; do not know as Dr. Davis told me 
his feet should not be wet; don’t know as I saw Dr. Davis there ex- 
cepting when they put on the splint. He attended my brother after 
he was put into the splint, while at Estabrook’s; don’t know as ho 
was the family physician ; do not know as he attended a sick child 
there ; he is a brother-in-law of mine. After he was moved home, 
don’t think there was any splint. Don’t remember whether left on 
litter, or taken off and put upon a bed. Have seen him sitting in a 
chair, (got by Dr. Davis’ directions,) at home. When I examined 
his heel today there was a hole in it as large as a small pea; that 
was all the sore there was. He had a sled run over his foot a year 
ago last winter ; think it run across his toes. He said he was going 
to get on his sled and slipped. Don’t recollect about having his leg 
reset after being removed home; supposed he used ardent spirits 
before being hurt; he had spirits in haying time, and occasionally at 
other times. He generally kept some by him. He drank weak sling 
with cracker in it twice or three times a night, when I watched with 
him ; did not drink any thing else. 
By Mr. Converse. Never saw my brother when I thought he had 
drank too much; have drank spirit with him and don’t know as he 
takes any larger portion than people who call themselves temperate. 
I always drink when I can get it. His foot never varied from its 
place when I watched with him ; suffered it to be released five min- 
utes at a time ; He would beg to have it loosened, and I would loosen 
it as little as possible, and have sometimes pretended to untie the 
sti’ings when I did not. The folks said Dr. Davis said it must not be 
untied. 
The following minutes of the testimony of J. D. Hilton, at the last 
trial, were admitted and read by the Judge : FOR ALLEGED MAL-PRACTICE. 
15 
I made the gaiters; never made any before; made them, I should 
think, under Dr. Crosby’s directions; I was sent for on Saturday; 
Dr. Crosby and Dr. Davis came to the door with the book, and showed 
me how to make the gaiters. I made them and carried them on Sun- 
day to Estabrook’s; gave them to Crosby. He said they would an- 
swer. I saw plaintiff after he was in the splint a number of times; 
he had on both gaiters; they were made of strong canvas, lined with 
white sheepskin ; saw plaintiff at one time,—his heel was sore. 
James Burnham, sworn. Saw Slack first on Monday after the 
accident; the Tuesday night following, I watched with him ; he was 
very uneasy ; he complained of pain about his feet and ankles; didn’t 
complain of pain in the thigh; he said the other pain was so much 
greater he didn’t mind that; both feet were in the same position. In 
about a week, I watched with him again; he was in much pain in his 
feet and ankles ; they were considerably swollen and inflamed. Saw 
them several times; a considerable part of the time there were on 
them eruptions and sores; the first were about the ankle joint and 
round the instep. Could not tell whether there were running sores 
before they were taken off of the board. Was present at the time he 
was removed ; his feet and ankles were very sore at that time. Think 
I watched with him six or seven times when he was at Estabrook’s; 
he grew worse every time I saw him ; assisted in carrying him home. 
Q. Where did you say he grew worse ? A. The sores were 
worse, that is what 1 meant. Have been acquainted with Slack about 
twelve years. His health and ability to labor before his injury were 
uncommonly good. Don’t know how often I saw him at his house- 
Called at every opportunity. The first time I watched with him after 
he was carried home, he was lying with his feet over the foot of the 
bed, and the matter was dripping off on to the floor. Saw a piece of 
the heel the day after it came off; perhaps it was half as big as a 
hen’s egg; it was black. Don’t know as I can tell how long it was 
before he got out. Know his ankles and heels were sore some time j 
have seen them occasionally since ; perhaps it is a year and a half 
since I have seen them ; have always been sores on his heels when I 
saw them. Ankles healed up. Well leg was released before he was 
carried from Estabrook’s. Can’t tell how long \ it runs in my mind 
it was a week or ten days before. Think it was not far from the 
middle of May when he was moved home. 
Cross examined- Released his legs frequently, perhaps once or REPORT OF A TRIAL 
16 
twice a night; think I may have loosened the straps at the footboard 
occasionally ; some nights have done it often, and sometimes not 
more than once or twice; untied them to let there be a chance to re- 
lieve the pain ; left them so a minute or two, and then drew them up. 
Don’t know about the directions of Dr. Davis only by those who had 
taken care of my brother. They said that they might be released 
occasionally to relieve the pain. Do not recollect what the shortening 
of the limb was at the time he was taken out of the splint, but it was 
stated it was shorter; assisted Dr. Davis in measuring after he was 
carried home, and he said there was no difference between the meas- 
urement then and before he was moved. Did not help measure it be- 
fore he got home; didn’t see it measured then. I asked the doctor 
for certain reasons, if it had injured him to carry him home ; one 
reason why I asked him was because there were objections made to 
his being taken home. Dr. Davis objected ; he said he ought not to 
be removed that day, but might be the next; asked him what differ- 
ence a day would make. Don’t recollect what reasons he assigned. 
Don’t recollect about his saying he would not take any responsibility 
if he should be removed; did not hear him say if we removed him at 
all it shouldn’t be while he was there. I went there before Dr. Davis ; 
did not hear all the conversation the doctor had in regard to that sub- 
ject ; cannot tell by whose suggestion it was concluded to move him ; 
did not hear any of the neighbors say they would go down and move 
him at any rate ; knew Dr. Davis went away and staid a short time, 
and it was said by some one that he had gone away and did not like 
to have Slack moved. At the time I saw the sores I was speaking of 
when I removed the fastenings, I could see them without taking the 
gaiters off; holes were cut in them over the sores; could not tell at 
what time the holes were cut. Am well acquainted with Slack; live 
within about half a mile of him; could not tell what his habits of 
drinking ardent spirits were. He is a man who has used ardent 
spirits occasionally ; when I watched with him, my impression is that 
he occasionally had some sling with cracker in it. There was a pulley 
to lift his great toe, ai|d something to draw his heel up off the board 
to rest it. Think there was nothing between the board and heel at 
first. Think there was something tucked under in some way to re- 
lieve him ; never saw any thing under the soles of the feet; could 
not say as any thing was put under the limb on the inclined board ; 
never saw any bands placed from the knee to the foot-board. The For alleged mal-practice. 
17 
pullgy was fixed so that Mr. Slack could raise his foot up and down 
as often as he pleased ; do not know how often he did this; know 
nothing of his leg being broken up and re-set after he was moved 
home ; nor of any treatment being applied in consequence of the want 
of adhesion; watched with him in about a week after he was moved 
home, and about once a week afterwards; never saw his leg meas- 
ured but once, which was after and the same day that he got home. 
Dr. Shubel Converse, called. I reside at Norwich; have prac- 
tised as a surgeon and physician 20 years; resided at Norwich 17 
years. Acquainted with defendant. He is also a professed surgeon 
and physician. I saw the plaintiff some three or four days after the 
injury, in the fore part of the week; might have been Monday or 
Tuesday. I was passing to or from Hanover. Met Dr. Crosby near 
the bridge, and went in with him to see Mr. Slack; don’t know as at 
any body’s request. Some conversation occurred between us about 
plaintiff’s injury; whether Dr. Crosby asked me to go in, cannot say. 
We went in together. I had no care of him at that time. I found 
him upon a splint, called the inclined plane; Gibson’s splint; both 
legs elevated. Consisted of three pieces of board, &c. ( Witness here 
describes the splint.) Inclined part extending from within 8 or 10 
inches of the end of the upright part to towards the end of the hori- 
zontal part. Not able to tell the angle; should think from 30 to 35 
degrees. As far as I know, this has not been in common use in this 
section. Never knew it used in this section before. Splints gener- 
ally used here are the straight splint and the double inclined plane. 
(See Plates 4 and 5, on next page.) I believe it is generally consid- 
ered that the double inclined plane is better adapted to fractures of 
the upper third of the thigh. Straight splints are generally used for 
fractures below the upper third. Do not know what splints defend- 
ant was in the habit of using for fractures at that point. He once 
assisted me in a fracture of the thigh at the neck, and that was treated 
upon a straight splint. I did not satisfy myself at all, made no exam- 
ination, as to the point or nature of the fracture. Location was pointed 
out to me by Dr. Crosby at that time ; it was at the lower end of the 
upper third. I was satisfied it was an oblique fracture, from the fact 
that the limb had a tendency to shorten. I don’t know any thing 
about, and Dr. Crosby did not inform me, whether it was a simple or 
double fracture; I have never made examination to satisfy myself 
about it. I have treated fractures of the thigh somewhat. I have 18 
REPORT OF A TRIAL 
used tho straight splint and the double inclined plane. The place 
pointed out by the defendant was not as favorable for cure as lower 
down ; should consider it quite as favorable as one higher up. The 
splint used on plaintiff I know nothing about from experience, at all; 
I had before seen it described in Gibson’s Surgery; I am not prepared 
to state the advantages or disadvantages of this splint,—never used it. 
The position being elevated, of this splint, was favorable to Slack’s 
case,—the same as in the double inclined plane. Were I to give my 
opinion as to its disadvantages, should say it would be rather more 
difficult to make and keep extension on this than on the straight splint, 
or double inclined plane. I imagined that might be the case; it is 
mere matter of opinion. Very important to use a splint that the pa- 
tient can be continued on a sufficient length of time, and one that 
would be the most comfortable to the patient. Extension is important 
from the time of injury to the time of cure. Think it most important 
to be kept up from the fifteenth to the fiftieth day of the fracture. 
Plate No. 4: The Double Inclined Plane. 
The splints and bandages around the thigh, necessary in the double inclined 
plane, could not have been used on account of the swelling and tumor de- 
scribed by Drs. Brown and Davis. [See Plate No. 1.] 
Plate No. 5: The Straight Splint. 
The same objections hold good of this Splint as of the last, besides the dis- 
advantage of position. [See Plate No. 2.] FOR ALLEGED MAL-PRACT1CE. 
19 
Of the utmost importance to use such apparatus, that the point of pres- 
sure can be shifted ; it might be done and the ankles relieved on Gib- 
son’s splint, by adhesive strips. When I saw it at Estabrook’s, exten- 
sion was made by gaiters at the ankles. Pressure might be relieved 
or changed by bands just below or just above the knee on this splint; 
circulation, if muscles were strong, might be some obstructed ; I think 
pressure might be divided at many more points on a straight splint 
than on this; it would be rather more difficult on this, as it strikes 
me. The only difference I see between the double inclined and the 
single inclined plane is, that in the former, only one limb is confined, 
and in the latter both, and I think it might require a little more power 
to produce the same extension on the single inclined plane ; the weight 
of the limb must be overcome before the extension can be made; 
think the extension force can be more easily distributed in the double 
inclined plane.. The object of extension is to overcome the tendency 
of muscles to contract; bending the limb would have a tendency to 
relax one set of muscles and render more tense the other set. No 
great difference between double inclined and this, as to making the 
pressure uniform. I saw the plaintiff about the middle of June fol- 
lowing at his own house ; I was passing, and was called in. He 
called my attention to his ulcers; I found he was under the care of 
another physician, and I declined to do any thing at that time ; found 
him sitting in a chair, his limbs hanging, very much swollen; very 
bad ulcers upon his feet and ankles; ulcers on the foot of the frac- 
tured limb were worse than on the other; there were four upon the 
foot of the broken limb, (one upon the heel, one at the instep, and on 
each side of the ankles;) whole surface of the heel was involved in 
ulcers; portion of large tendon of the heel was exposed; lower end 
of the tendon appeared to be ragged, hanging by strings, with dark 
appearance, sloughing stage, (meaning separation, or throwing off of 
the dead from living matter.) I saw Mr. Slack occasionally after the 
18th of June, when he fell under my care, until the 1st of August. 
Swelling subsided; appearance of ulcers gradually improved. When 
I first saw him at home, I should think it extremely difficult for him 
to bear any extension whatever; he appeared to be feverish; fever, I 
concluded, in consequence of the sores upon his feet; in a very irri- 
table condition. I made something of an examination, and satisfied 
myself that union had taken place, to some extent; but to what ex- 
tent, I could not tell. Have been acquainted with the plaintiff 17 20 
REPORT OF A TRIAL 
years; his health was uniformly good, as far as I knew, till this time ; 
I did not visit him after August; don’t know how long before he got 
out. He has shown me his heel a number of times since; he did so 
but a short time since ; the heel "appears to be gone, or part of it—the 
prominent part that extends back; the sore upon the heel appears to 
be permanent; it may get well, it may continue longer; it is an 
open ulcer; it discharges; it is my opinion, and has been, that the 
bone, a small part of it, is dead, and the ulcer is kept up by that; it 
must be a very small piece, if any, and may pass off and the ulcer 
heal; sometimes have ulcers upon feet very difficult to cure, owing 
to the constitution, nothing to do with the bone. Think the heel of 
the well leg is cured; have not seen it. 
Shortening of the limb, at the time of the confinement with ulcers, I 
measured once or twice, and my conclusion was, that the shortening 
was 2 3-4 inches; should consider it a permanent damage to him; 
much more difficult to walk about than if of natural length ; think the 
motion of the ankle joint on the injured limb is somewhat injured 
by the injury to the heel; he would bo liable to suffer some pain from 
it, particularly from this ulcer. I have heretofore been occasionally 
the family physician of the plaintiff, and I think before this accident. 
I got the impression that it was a simple oblique fracture; can’t say 
Dr. Crosby told me so; I made no examination. 
Cross examination. Only went in to see plaintiff with Dr. Crosby. 
Dr. Crosby and I are on better terms than I and Dr. Davis. 
[ Asked the witness what the rule is among surgeons and physicians 
in that vicinity, and as established by the state and county medical 
societies, as to any obligation of a surgeon so called to consult and 
render temporary assistance, and then the patient is left in the care 
of an attending family physician, to render any further assistance. 
Objected to, and excluded by the Court. Defendant excepts.] 
The rule is among physicians and surgeons to adopt such splint as 
the one called thinks the occasion requires; may make alterations in 
those already in use, or adopt one of their own. One would adopt 
one splint; another, another splint, in the same case. If called, I 
should have been a little more apt to have adopted the double inclined 
splint, for the reason that I have never tried Gibson’s; the double in- 
clined not very recent; think not as early adopted as the straight 
splint; more force is required to get extension when the fracture is 
high up on the thigh,—the muscles stronger. There are two large FOR ALLEGED MAL-PRACTICE. 
21 
muscles inserted into the trochanter minor. [ Witness takes the thigh 
bone of the left thigh and explains.] Muscles are to draw the thigh 
up; the tendency of these muscles is to draw the point of fracture 
up ; in many cases, and in such a fracture as the plaintiff’s, it is im- 
portant to raise the limb to overcome that force of muscles. No rule 
as to angle; may be different, may be the same angle, in both; angle 
should be regulated properly. Discovered no elevation in plaintiff’s 
case but what was necessary. In the double inclined splint there 
would be more danger of excoriation and inflammation at the knee, 
and stiffness of the knee joint; no case ever came under my observa- 
tion where it occurred at that point. As far as my observation ex- 
tends, there is no difference as to stiffness of the knee between the 
two. Might make more powerful extension with the straight splint; 
as to certainty, cannot conceive much difference. The pelvis is not 
confined in either kind. The double inclined plane would admit of 
appliances to fasten the body. I use such. More easy to get exten- 
sion on straight horizontal than on double inclined; the same, if the 
leg is brought up, with the exception of the weight of the limb. I 
cannot say with any certainty that one splint would be preferable to 
the other, only as the patient might be better able to bear one than 
the other. In case of double, comminuted, compound fracture, with 
great laceration of the soft parts, there might be advantages in adopt- 
ing Gibson’s, and might be disadvantages ; would not do to fasten at 
the thigh,—must be at the feet, or some other lower portion of the 
limb. Don’t see why it is not as easy to keep on the double as the 
single. Must be kept in place on the double by bolsters to keep from 
rolling. I have used a double, with a transverse piece, of perhaps a 
foot and a half in length, resting upon the bed near the foot, to steady it. 
There are Goodwin’s and Rowe’s double splints. I use Rowe’s. Trans- 
verse piece may not be more than 8 or 10 inches long; physicians 
may alter; I have made longer ones. I adopt such variations of 
splint as I think best. There is difference of opinion ; some think it 
important to secure both limbs; others, not; some recommend secur- 
ing both limbs in a horizontal splint. Relieving limb may be made 
on Gibson’s by moving the body, by paddings put in, by bandages 
about the limbs, and by loosening the cords. With reasonable care 
by the attending physician, I suppose the patient might be relieved in 
Gibson’s splint. Frequently excoriations about the feet occur to a 
certain degree, when there has to be great force for extension. In 22 
REPORT OF A TRIAL 
1845, sticking-plasters were not known or used. Since that time col- 
lodion, or gun-cotton, is applied to avoid excoriations,—not then 
known or used. Then it was customary to get extension from the 
foot by means of gaiters, for first application even up to the present 
time. Pain is usually found at the place where power is applied to 
the limb ; greatest suffering is at the feet and ankles; it is common 
to have pain about the hip and in the well limb ; it is unavoidable. 
Frequent wetting of bandages would be more apt to produce inflam- 
mation and excoriation; they become harder; tends to soften and 
endanger the coming off of the hard parts of the heel. Excoriations 
of the heels and ankles I should think are owing more to other circum- 
stances than to the splint. It would make no difference whether wet 
with rum, or rum and water. Always in setting and putting into the 
splint, it is necessary to use force enough to make proper extension. 
I never considered it safe to allow watchers or attendants to loosen 
gaiters, or at the foot-board; had rather do it myself. The practice 
of watchers and attendants to take off extensions, I should not con- 
sider safe at all; its effect would be to retard recovery. With such 
practices, or if there are any displacements, it would require longer 
time. I consider there is no reasonable probability that limb could be 
let down by attendants without derangement or displacement of limb. 
Should it turn out a double oblique fracture with laceration, and what 
I know of Slack’s case, 1 should consider from 60 to 80 days confine- 
ment to the splint necessary. Should think it quite unsafe to remove 
the splint at the end of 31 days, and not put it on again ; the effect 
would be the probability of shortening and curvature. The effect of 
taking the ankles out and letting them hang down, at the end of 31 
days, would be to increase inflammation of the ankles, &c. When the 
well leg had been kept up till that time and then let down, it would 
have a similar effect upon the ankle of that limb ; swelling, at least. 
Chance of recovery would be affected by the habits of the patient. It 
is considered that those in the habitual use of ardent spirits are unfa- 
vorable subjects for treatment of fractures, or any other inflammation 
that may arise; ulceration is more likely to accrue. The effect of 
drinking sling and crackers two or three times in a night, the first 30 
days, during the stage of inflammation, I should think would have a 
very bad effect. Inflammation would be the greatest for the first two 
weeks. Previous to my attending the plaintiff, I understood from him 
that Dr. Davis had been attending upon him. It is the duty of the FOR ALLEGED MAL-PRACTICE. 
23 
attending physician to attend to the feet and care of the patient. I 
cannot tell whether I have practised more in plaintiff’s family before 
or since the injury. 
[Offer to prove witness’ practice as to continuing visits when called 
for special occasions. Objected to and excluded. Exceptions.] 
When I saw plaintiff there was padding, or a cushion; board was 
covered ; also heels covered by gaiters. Do not remember whether 
padding under gaiters. Sure limb did not rest upon board. 
Re-examination. Don’t recollect about it, but rather my impres- 
sion that I was asked in by defendant. I never went to see a patient 
without an invitation. Object of applying splint is to overcome con- 
traction of muscles and keep fractured limb in proper place. This is 
the object of all splints. Gibson’s splint has been known to the pro- 
fession twenty-five years; perhaps more. To get proper extension, 
would not be necessary to change the splint, but apply more force in 
fractures of the thigh. In double, facilities for changing angle ; may be 
varied at pleasure. (Model of Goodwin’s kind is exhibited.) Princi- 
ples of others, same. Sometimes necessary to change angle, or 
desirable and convenient to patient to do it. I think it can safely bo 
changed on Gibson’s splint by one accustomed to it—a physician. 
Don’t know as there would be any difference between Gibson’s and 
double, as to power of extension. Necessary, sometimes, to change 
degree of power. If bent at knee it relieves so much at ankle. 
Only advantage in Gibson’s, there is a vessel to receive the dischar- 
ges from the patient—both sides of pelvis being raised—that may be 
an advantage over the double. Don’t know as I can conceive any 
other advantage. Cannot be applied to other splints, unless both 
limbs were elevated. Might be if raised with hand, but not without a 
little risk of displacement; think it may be so done. Excoriations 
are usual, but never saw any like these before. As patient was when 
I saw him about the middle of June, consider it wholly impracticable 
to apply any extension at all. Force is often found necessary to bo 
changed from the ankle. I had the impression it was a simple frac- 
ture. I don’t know anything why plaintiff is not a temperate man. 
Should think some impropriety in administering sling in inflammatory 
stage ; not in habit of prescribing it in cases of fracture ; not improper 
in case of exhaustion, after active inflammatory stage is passed by. 
That would usually be in two weeks, on fractured part. At point of 
pressure might be inflammation in a very few days, according to force 24 
REPORT OF A TRIAL 
used to procure extension. Should consider horizontal position more 
favorable to cure ulcers. 
2d Cross examination. I only went with intention to see plaintiff. 
Defendant did nothing more, and expressed no other intention. In 
case of great pressure, double might have tendency to shorten limb; 
but I have had about as good success with one as the other. In com- 
minuted fracture quite desirable to keep patient as quiet as possible— 
in a state of rest—more so than in ordinary cases of fracture. I 
never have seen a case of double, oblique, comminuted fracture at 
that point. Such a fracture is of very rare occurrence. Could not 
occur, I think, unless produced by crushing. When produced by 
crushing, more difficult of cure. 
2d Re-examination. When I saw plaintiff with Dr. Crosby, I saw 
limb uncovered, but not the ankles.. 
Dr. Albigense Pierce, called. Have practiced physic in Straf- 
ford since 1811, and surgery some. Was requested to 
June 10, to meet Dr. Davis. He was sitting in chair as described by 
Dr. Converse, feet hanging over, dripping from both heels. Was a 
chair with joints, so that it might be placed in a horizontal position, 
almost. Feet hanging over a foot beyond chair. He was reclining; 
might sit erect if he pleased, in it. At that time I met Dr. Davis and 
prescribed for ankles and heels. I barely looked at fracture and ex- 
amined it so far as to conclude that union had taken place. No 
extension could then be made—ankles, &c., were in such condition. 
Ankle upon fractured limb was the worst; ulcers upon both ; at heel 
of well limb not so large as in fractured limb. That on broken limb 
was an ulcer—to bone—as much as 11-2 inches across—much 
swollen—a deep ulcer. I told Dr. Davis he must take a different 
course. He said he had poulticed them. I told him that would not 
answer. No dressings at that time at seat of fracture. I was re- 
quested to meet Dr. Converse there the 14th of June. I went; Dr. 
Converse did not come. I left written directions what course to pur- 
sue. I think Dr. Davis and I then agreed that the difference between 
legs as to shortening, was 2 1-2 to 3 inches; very much as it now 
appears. I have examined it since. There is a good deal of a curve 
also. A good deal of the heel is also gone on injured limb. Short- 
ening was occasioned by bones passing by one another—not by the 
crook only. At that time I had never used the straight horizontal 
splint; always used the double. Never have used Gibson’s splint, FOR ALLEGED MAL-PRACTICE. 
25 
nor seen it used. It is a number of years since I first saw Gibson’s 
splint laid down in Gibson’s Surgery. I have used a box splint — a 
round box splint—at a fracture near this point. In young subjects, in 
fracture of the thigh, this box splint is the best I could use. That is 
a straight, horizontal splint. I never considered this fracture, as rep- 
resented to me by Dr. Davis, as any thing more than a simple oblique 
fracture. I made no examination to determine ; none could be mado 
then more than now. I consider it was in upper part of the thigh, 
near the trochanter. I call this an unfavorable result. 
Cross examination. If the fracture was a compound comminute 
fracture, it would require a great deal of extension. A very good re- 
covery would not be expected. Shortening is expected in ordinary 
cases. Should not think strange, in the best recoveries in such a frac- 
ture, if there should be a shortening of two inches; do not expect a 
good recovery in such cases. I meant that, taking every thing to- 
gether, I do not consider in plaintiff’s case a favorable result. Dr. 
Gibson holds a high reputation ; his Surgery, I think, good authority, 
—is highly spoken of; it is adopted as a text-book in medical schools 
in New England, or has been ; (is shown the book,) and says, this is 
the book, and this is the splint, (is also shown the plate drawn on 
large scale,) and says it is a similar splint. Physicians select or 
make such splint as they think best. Of course we rely, in selecting 
splints, upon gooci authors—for a trial, at least. Not admissible at 
all, to allow attendants to relax extension, or loosen gaiters. It is 
done, but ought not to be. If not carefully attended to, they are apt 
to get up bad sores. If the patient does not submit, lie would not ex- 
pect a good result. I should think the bad results in plaintiff’s case 
owing to improper attention and care. Nothing in Gibson’s splint 
tending to create sores, or ulcers, more than on any other splint;— 
sores are to be anticipated more or less, but by careful treatment may 
be greatly avoided. During inflammatory stages, ardent spirits would 
not be admissible at all; case not so favorable if in the habit of using 
ardent spirits every day. * Wetting of the feet and ankles should not 
be done ; it would generally create more sloughing, skin peels off; 
for a time more comfortable ; evaporation takes place quicker, and 
has to be done oftener. In such a case, union could not be expected 
short of 60 or 80 days. Effect of taking out of the splint earlier, 
would be shortening, of course, if bony union had not taken place. 
I think bony union could not be expected earlier. In simple oblique 26 
REPORT OF A TRIAL 
fracture, don’t get union before five weeks. We think best to keep 
them in the splint longer,—until union becomes firm. 
I had conversations with the plaintiff a number of times. He said 
he was “ going to sue them fellows,” and asked what it was best to 
do about it ? I answered something. At another time he said to me, 
“ I have been to Woodstock and taken counsel, and am going to sue 
Dr. Crosby.” I asked, “ why not sue Davis, as he had the charge of 
it? ” He replied, “I am going to sue Crosby and take Davis as a 
witness. If I should sue Davis, he is a poor devil, and I should get 
nothing; and I shall sue Crosby, and use Davis as a witness.” 
Re-examination. I have treated fractures of the thigh bone ; some 
shortening in all cases ; not over an inch. I have treated compound 
fractures of the thigh, and comminuted, where the bone was broken 
in two places, and through the flesh. Have seen Gibson’s splint laid 
down in Smith’s Manual of Sulgery, and recommended. I do not 
recollect any author but Gibson, and other authors who quoted Gib- 
son, who recommended this splint. I don’t recollect any others. 
Smith does not recommend this ; he laid it down among others. We 
loosen fastenings frequently. If fastenings are loosened by any one, 
and it required no force to bring them up to the place again, it would 
not indicate shortening. In Gibson’s splint, both limbs are brought 
up as represented there, and the power applied at feet and ankles. 
Have known plaintiff,—seen him once or twice a year. It might 
make some difference in drinking spirits. I never saw the plaintiff 
drink in my life ; am not much acquainted with him; never saw him 
when intoxicated. Believe the point of pressure might be changed on 
Gibson’s splint; not so easily changed on this as on others. Most 
important extension to be kept up from two to five or six weeks; not 
to be kept up so constantly for 60 or 80 days. Second conversation 
with plaintiff 1 think was at Strafford; he wanted me to give him a 
writing. Don’t recollect as any one was present at either of the con- 
versations. In repeating it, I think I have used Slack’s language. 
2d cross examination. If the heel had been suffered to rest upon 
the bed, it would had a tendency to create sloughing. (Is shown a 
gaiter, and says it is the one in common use.) Have seen gaiters 
that lace upon the sides. Charles Bell’s Surgery is a good work. 
Re-examination by Court. A straight splint extends clear up un- 
der the arm, and is confined by bands. 
Francis A. Sumner, sworn. Brother-in-law to Mr. Slack. Saw FOR ALLEGED MAL-PRACTICE. 
27 
him the Wednesday after he was hurt; watched with him that night, 
could not tell who watched with me, think it was Mr. William Slack, 
now deceased. A number of the neighhors were in. He was in con- 
siderable pain in his feet and ankles ; it continued all the time ; did 
not complain of pain any where else. Left early the next morning ; 
saw him a week from the Saturday after. Lived in Hartland at the 
distance of about twelve miles from him. Watched with him that 
night; he was worse than at the first time I saw him ; went away in 
the morning ; did not see him again till about the 1st of November. 
He came to my place ; he did not rest or sleep the second night I 
watched with him; he complained of pain in his feet, ankles and 
heels. Did not make but a little examination, as much as I could by 
lifting up the edge of the gaiters; this was the first time I watched. 
The skin had begun to come off. All I could see was two small spots, 
one on the foot, the other near the joint. Second night his heels were 
very sore and his ankles considerably worse ; there was nothing un- 
der the heels excepting a coverlid which was spread over the board. 
Have known Mr. Slack about 20 years; his ability to labor before 
this injury was very good, could do more work than men in general. 
Cross examination. Think the gaiter was laced upon the side ; 
could not tell on what side. The support under the limb was a cov- 
erlid, don’t know as it was quilted. The second night I loosened the 
top strings of the well foot once, the first night did nothing at all; do 
not recollect that he had any sling; did not wet his feet. 
Taylor Slack, sworn. Brother to plaintiff; saw him Tuesday after 
he was hurt; remained there till Saturday towards night. He was in the 
splint when I saw him, was very restless ; he complained of his heels 
and ankles, but of nothing else. The last day they were worse than 
the first. Made an examination of the heels the day I left; they had 
begun to turn purple ; he complained of the instep ; the pain was in 
both feet. Don’t recollect of seeing him again until after he was 
moved home. Did not assist in carrying him home. Should not 
think there was any extension made while I was there of any conse- 
quence. When I saw him at home, he was lying in bed so as to 
clean his feet; his heels were badly swollen, and sores on his ankles. 
Do not think I saw him again till he got so as to ride out. A part of 
one heel had fallen off; should describe it about as Dr. Pierce has. 
Don’t recollect seeing what had fallen off; he was before the injury 
probably more healthy and could do more work than the average of 28 
REPORT OF A TRIAL 
men. At the time of the accident, lived at the distance from him of 
about 14 miles. Before the accident saw him usually three or four 
times a year. Never saw him drunk; never knew him to practice 
drinking every day. 
Cross examination. The attending physician at the time I saw 
him was Dr. Davis. Did not take off any part of the heel. Couldn’t 
say I furnished him with sling; do not know as he had it. Don’t 
know that I occasionally wet his heels. Did not furnish him with a 
long stick with a nail in it to scratch his heel. Did not furnish him 
with any thing of the kind. 
Lewis Fowler, sworn. Lived perhaps 60 rods from where Slack 
was carried in; was present when the limb was dressed and put into 
the splint. It was made by Mr. Estabrook. Dr. Crosby was present 
when he was put into the splint. Dr. Crosby and Dr. Davis had the 
charge. Saw him twice or three times a week. Did not watch with 
him. When I saw him he complained of his legs and feet. He had 
a pulley up over the foot of the bed, and could pull up his feet by a 
cord. Never saw the apparatus changed while I was there. 
Cross examination. Dr. Davis was the attending physician while 
I was there. Didn’t know that Slack had any ardent spirit. 
Deposition of George Blood. I, George Blood, of Boston, in 
the County of Suffolk, State of Massachusetts, of lawful age, depose 
and say;—Some time in the winter of 1847 or 1848, Lorenzo Slack 
and myself were drawing wood from Norwich, Vt., to Hanover, N. 
H. One day as we were near the west end of Hanover Bridge with 
our loads of wood, Dr. Dixi Crosby, of Hanover, N. H., came down 
the river road, and asked Mr. Slack when he was coming over to 
settle with him ? Slack said: “ Settle with you for what ?” Dr. 
Crosby said : “For doctoring you.” Slack said : “ I do not owe you 
anything ; you owe me and ought to pay me something for ruining 
me in the way you have, making a cripple of me.” Crosby said : 
I will see whether you will pay me any thing or not, if I get you 
on the other side of the river,” and then asked Slack if he was going 
over the river that day, and Slack said he was, and should go over 
every day until he had to pay toll. Slack did go to Hanover that 
day with me, and further say not. 
EVIDENCE CLOSED FOR PROSECUTION. FOR ALLEGED MAL-PRACTICE. 
29 
The plaintiff having rested, a motion was made by counsel for the 
defendant, upon the case made by plaintiff’s testimony that the jury 
should be instructed that the plaintiff was not entitled to a verdict, 
upon the ground of variance between his proof and his declaration, 
in this.—That the plaintiff in his declaration has based his right to 
recover against defendant, upon an alleged undertaking on the part 
of the defendant, “ for a reasonable reward and compensation to be 
therefor paid to him by the plaintiff, to reduce, set, dress, treat and 
take care of the said fracture, and the plaintiff thereof to cure.'n 
Whereas, the plaintiff’s proof shows, that defendant, when applied 
to, was confined to his house by illness, and for that reason declined 
taking charge of the case ;—and only went over, at the urgent impor- 
tunity of Drs. Brown and Davis, to assist them in putting plaintiff 
into the splint; that Dr. Davis had the whole subsequent care of the 
case ; and there was no evidence tending to prove that defendant 
either did, or was expected to, exercise any care over, or have any 
thing to do with, the case thereafter ; and cited the case of Vail v. 
Strong, Vt. Reports, 457 ; in which it was held that “ In all 
cases where the cause of action originates in contract, and the decla- 
ration, in form, counts upon the contract, the contract must be proved 
precisely as laid ; and a variance, in any one feature of the contract, 
is fatal; and this, whether the action be in form ex contractu or in 
tort.” Motion overruled and the defendant excepts. 30 
REPORT OF A TRIAL 
TESTIMONY FOR DEFENCE. 
Horace Estabrook, sworn. Was present after Mr. Slack was 
carried to the house, and assisted in making a splint. I did not re- 
ceive the directions from any one; my brother had charge of making 
it. I made it according to a plan in a book ; I think Gibson’s Sur- 
gery. [ Witness was shown a book,— Gibson’s Surgery,— and recog- 
nized it as the one used.] Believe there are directions given in the 
book as to the dimensions of the splint. First made the splint with 
a little variation from the plan, and the next morning Dr. Crosby 
recommended it should be altered to conform to the plan in the book 
and it was so altered. Was present at the time Slack was put into 
the splint. Do not recollect who assisted in putting him in; Drs. 
Crosby and Davis were present, and I think some of Mr. Slack’s 
brothers. 
Deposition of Edwin Estabrook. I, Edwin Estabrook, of Nor- 
wich, County of Windsor, of lawful age, depose and say : That Mr. 
Lorenzo Slack was brought to our house in April, 1845, on the day and 
immediately after he was injured by a bank of earth falling on him. 
When first brought in he was laid upon the floor until a bed was pre- 
pared ; Drs. Brown and Davis came very soon and assisted in laying 
him upon the bed, after which they went away but soon returned. 
Dr. Davis (I think) brought me a book in which were plates of a 
number of splints, and wished a splint made as directed in the book; 
the one selected was an inclined plane. Soon after the return of 
Drs. Brown and Davis, Dr. Crosby came. Little or nothing was done 
with the fractured limb that day; the next morning Dr. Davis came ; 
some time after Dr. Crosby came I finished the splint as described in 
the book, except I left the inclined board longer than described; I 
suggested that it would be easier for the patient; Dr. Crosby remark- 
ed that he would rather have practice than theory, or some such 
expression ; I altered it; the splint when applied was in every par- FOR ALLEGED MAL-PRACTICE. 
31 
ticular as described in the book. Drs. Davis and Crosby, with the 
assistance of others, fixed Mr. Slack upon the splint. Dr. Davis 
continued to visit him, at first a plurality of times per day, the last 
of the time less frequently. Mr. Slack complained that Dr. Davis 
did not come oftener; Dr. Davis said that he came as often as he 
could be of any benefit. Do not recollect of seeing Dr. Crosby or 
hearing him spoken of as being at our house more than once or twice 
after Mr. Slack was fixed upon the splint. Mr. Slack complained of 
his heels, ankles and toes, and kept some one much of the time rub- 
bing or scratching them ; his relatives stayed with and took care of 
him. Mr. Slack had his feet frequently wet with vinegar or spirits. 
After 30 to 35 days Mr. Slack’s neighbors came to carry him away. 
Dr. Davis was at length prevailed on to go into the room, and assisted 
in fixing him upon the litter, at the same time remonstrating against 
his being moved, saying that if he persisted in being moved that he 
(Dr. Davis) would take none of the responsibility. When Mr. Slack 
was taken from the splint, the injured leg was some 1-4 to 3-8 of an 
inch shorter than the other, otherwise the leg appeared in good con- 
dition. There were spots upon the heels and ankles that were in- 
flamed. 
Question ly defendant.—When did you make the splint, in what 
hours ? 
Answer ly deponent.—I made it on Saturday evening and Sunday 
morning; I think it was on both, and I think the day was April 12th ; 
it was the evening of the same day and the morning of the day fol- 
lowing after he was hurt. 
Question ly same.—Was Dr. Crosby present in your shop while 
you were making the splint, and did he give you any directions about 
it prior to your showing it to him ? 
Answer ly deponent.—I do not recollect of seeing Dr. Crosby in 
the shop, and do not recollect of receiving any instruction from him 
or any other one how to make it, other than what was in the book. 
When presented to Dr. Crosby I told him how I had varied from the 
book ; he then remarked that he had rather have practice than theory. 
I then altered it to conform to the plate in the book and the descrip- 
tion attached. 
Question ly same.—In what language was that book printed ? 
Answer ly deponent.—English language. 32 
REPORT OF A TRIAL 
Question by same.—How do you know that the injured limb was 
1-4 or 3-8 of an inch shorter than the other ? 
Answer by deponent.—I assisted Dr. Davis in measuring it. After 
he was placed on the litter I placed a stick against his heels, at right 
angles as near as I could, with his limbs. Dr. Davis had a string that 
he held to his hip bone and measured down to the heel of each leg. 
[ The plaintiff objects to all that part of this deposition where the 
witness speaks of what Dr. Davis said or did.] 
Question by plaintiff.—How many times did you see Dr. Crosby 
at your house while Mr. Slack remained there ? 
Answer by deponent.—I do not recollect that I saw him only on 
the Saturday that Slack was hurt and the Sunday following. 
Question by same.—Whether you attended upon Mr. Slack while 
he was at your house, or were you in the house so that you could 
have seen the surgeons every time they called ? 
Answer by deponent.—I sometimes assisted in waiting upon him, 
but did not attend upon him constantly. I was not at the house so 
that I could have seen the surgeons every time they called. 
Question by same.—Did Dr. Crosby ever call with Dr. Converse, 
to your knowledge ? 
Answer by deponent.—I do not recollect that he did. 
Question by same.—Upon showing the splint that you had prepared 
to Dr. Crosby, you say that the doctor replied that he had rather 
“ have practice than theory did you understand from that expression 
that he, Crosby, wanted it altered ? 
Answer by deponent.—I did. 
Question by same.—When altered to conform to the book, did 
Crosby say it was then right ? 
Answer by deponent.—I do not know that he said anything about 
it; he made no objection to it. 
Question by same.—Whose book was it from which you took the 
model of the splint ? 
Answer by deponent.—I do not know who owned it. 
Question by same.—What kind of string did Dr. Davis use in meas- 
uring the limb; and did you measure with the string ? 
Answer by deponent.—I think it was a piece of common tape that 
Dr. Davis measured with ; I think that I did not measure with a string, 
have no recollection of it; I did not measure the limb with a tape, 
neither did I measure the tape. FOR ALLEGED MAL-PRACTICE. 
33 
Questio?i by same.—How did you get the difference in the length 
of the limbs ? 
Answer by deponent.—By my eye on holding the stick across his 
heels at right angles with his limbs; I was at that time, by trade, a 
Wheelwright. EDWIN ESTABROOK. 
Interrogatories by Dr. Dixi Crosby, to be proposed to William 
Gibson, M. D.: 
Interrogatory 1.—Are you the author of a work, entitled the 
Institutes and Practice of Surgery, being an outline of a course of 
lectures by William Gibson, M. D., Professor of Surgery in the Uni- 
versity of Pennsylvania, &c., &c., &c.? 
Int. 2.—How many editions of this work have you published and 
when was the last edition published ? 
Int. 3.—What success have you had in the use of the splint as 
shown on plate fourteenth of the sixth edition of your work, described 
in interrogatory first? 
Int. 4.—What change, if any, has taken place in your opinion of 
the use of that splint in fractures of the thigh bone, since the publi- 
cation of that edition ? 
Int. 5.—What would be your opinion of the use of the above men- 
tioned splint, in the following described fracture, viz : “ two fractures, 
one a little below the small trochanter and the other at or near the 
neck. The soft parts on the outward side of the thigh very much 
bruised and lacerated, the point of the bone penetrating nearly through 
the skin, which, together with the blood which had escaped from the 
wounded vessels, gave the appearance of a large tumor. The whole 
thigh, also, very much swollen,” and the fracture occasioned by tho 
falling of a bank of earth ? Please state your opinion in full. 
Int. 6.—How long ought a patient with such a fracture to remain 
in the splint before being removed, and what effect would the fre- 
quent removal of the extension half an hour at a time have upon the 
consolidation and union of the fracture ? 
Int. 7.—What kind of a recovery would the patient be likely to 
have if the splint was removed on the thirty-second day from its ap- 
plication, and the patient carried a distance of three miles without the 
re-application of this splint, or some splint, to make permanent exten- 
sion ? 
Int. 8.—Plow does this splint compare with other splints as it 
regards the comfort of the patient ? 34 
REPORT OF A TRIAL 
Int. 9.—How does the use of this splint compare with the use of 
other splints as to its liability to produce excoriations of the heels and 
ankles, and to what are these excoriations owing. Are they charge- 
able to the splint in any case or the want of care in the attendant ? 
Int. 10.—How long have you been Professor of Surgery in the 
University of Pennsylvania, and how long have you been visiting or 
attending Surgeon to Hospital? 
I, William Gibson, of Philadelphia City and County, in the State of 
Pennsylvania, of lawful age, in answer to the accompanying inter- 
rogatories of Dr. Dixi Crosby, do depose, testify and say, as follows, 
viz:— 
First.—To the first interrogatory the said William Gibson, M. D., 
answers and says—I am. 
Second.—To the second interrogatory the said William answers 
and says—Eight editions, the last in 1850. 
Third.—To the third interrogatory the said William answers and 
says—Uniform success. 
Fourth.—To the fourth interrogatory the said William answers 
and says—I have had but one opinion of the use of that splint from 
the date of its invention down to the present time. 
Fifth.—To the fifth interrogatory the said William answers and 
says—I should have selected and employed it in preference to the 
splint of Desault, of Hagerdorn, of the double inclined plane, of Bell, 
Cooper and others, or to any other splint I have ever read of, seen, or 
heard of, and for the following reasons : If Desault’s splint had been 
employed, the counter extending band would have created great pres- 
sure on the parts in the immediate vicinity of the fracture “ a little 
below the small trochanter,” and also upon the fracture “ at or near 
the neck,” and severe pain, inflammation and excoriation would have 
been, in my opinion, the certain consequence, independently of the 
danger, from that pressure, of displacement or derangement of the 
fragments of bone at the side of the fractures referred to. Even in 
ordinary fractures of the middle of the thigh bone, great inflamma- 
tion, pain and excoriation of the pereneum and upper part of the thigh 
are apt to follow the counter extending band of Desault’s splint. Of 
course the effect of the same counter extending band would be much 
greater in a fracture “ a little below the small trochanter ” and the 
“ other at or near the neck.” Hagerdorn’s apparatus, consisting of 
two long splints and a foot-board, as modified by myself, would not FOR ALLEGED MAL-PRACTICE. 
35 
have been adapted, useful and efficient as I have found it in most 
fractured thighs, to the case in question, inasmuch as the long splint 
must have created painful pressure, if not high inflammation, and 
might have caused gangrene from its powerful operation on “ the soft 
parts on the outer side of the thigh,” “ very much bruised and lace- 
rated, the point of the bone protruding nearly through the skin, which, 
together with the blood which had escaped from the wounded vessels, 
gave the appearance of a large tumor.” “ The whole thigh also very 
much swollen,” &c. The double inclined plane of Bell, Cooper and 
others would have been better than the splints of Desault and Hager- 
dorn, but would have exerted little power, it appears to me, in produ- 
cing extension and counter extension. I repeat, therefore, I should 
have selected my single inclined plane for the case in question, upon 
the ground, that no counter extending band would have been required, 
that no painful pressure would have been made on the outside of the 
thigh over the projecting bone, on the tumor of blood, or on the swol- 
len thigh, that counter extension would have been made by the weight 
of the body, and extension by the bands of the apparatus ; thus leav- 
ing the soft parts and the fractured bones and large tumor and point 
of the bone as it were, free and unincumbered. 
Sixth.—To the sixth interrogatory the said William answers and 
says—I should say that a patient with such a fracture should remain 
in the splint at least three months before being removed, and that the 
effect of frequent removal of the extending and counter extending 
power “ for half an hour at a time ” would certainly interfere, mate- 
rially, with consolidation and union of the fracture, and might, even, 
in some cases, prevent union altogether, and give rise to unnatural 
joint; shortening of the limb would be the almost inevitable result, 
moreover, of such movements and of such consequences. 
Seventh.—To the seventh interrogatory the said William answers 
and says—Recovery with a limb considerably shorter than the sound 
limb, and with a clogged, if not anchylosed, condition of the hip joint. 
Eighth.—To the eighth interrogatory the said William answers 
and says—No splint, or apparatus, for fractured thigh can at all com- 
pare with the single inclined plane, or the splint referred to in inter- 
rogatory third, as regards the comfort of the patient. It is indeed one 
of its chief peculiarities and excellencies ; for the limbs elevated, say, 
at an angle of forty-five or fifty degrees, laying on an easy cushion 
or mattress with relaxed muscles and the blood drained, by position, 36 
REPORT OF A TRIAL 
from the limbs, by which swelling, inflammation, aidema and pain are 
obviated, and great facility afforded the patient of having a stool, 
through the opening near the base of the plane, without in the slight- 
est degree interfering with the fractured bone, cannot fail to give it 
great advantages over every other form of apparatus devised for these 
purposes. It was a favorite and leading principle with the late Dr. 
Physiek, to afford ease and subdue and remove inflammation, swell- 
ing and pain, by elevation of the extremities, and the inventor of the 
single inclined plane had these objects in view, in accordance with 
the principles just stated, of that great and enlightened surgeon. The 
inventor had observed, moreover, that most persons seeking an easy 
and relaxed position for their thighs and legs, generally throw them- 
selves backwards in their chair, resting their whole weight upon its 
two hindmost legs, at the same time elevating their feet at a consid- 
erable height, and resting them against a wall or upon some comfort- 
able place of support. It therefore naturally occurred to him that an 
apparatus for fractured thigh, combining these advantages,—advan- 
tages not possessed by other forms of apparatus,—must serve a most 
salutary, agreeable and comfortable purpose. 
Ninth.—To the ninth interrogatory the said William answers and 
says—Excoriations and ulcerations about the ankle and heel are very 
apt to follow the application of the extending bandage in any form of 
apparatus, acting upon the principle of Desault. They may follow 
from Desault’s, from Hagerdorn’s, or from my single inclined plane. 
But they seldom arise except from old and debilitated and intemper- 
ate people. They may be prevented in healthy persons by close at- 
tention, by changing the bandage frequently, by using a gaiter, by 
covering the skin with adhesive plaster or collodium. 
Tenth.—To the tenth interrogatory the said William answers and 
says—Thirty-five years Professor of Surgery in the University of 
Pennsylvania, and twenty-four years Surgeon to the Philadelphia 
Hospital, Blockley, formerly Philadelphia Alms House. 
WILLIAM GIBSON, M. D. 
Deposition of Reuben D. Hussey.— I, Reuben D. Mussey, of 
Cincinnati, in the County of Hamilton and State of Ohio, Physician 
and Surgeon, depose and say; — That I am acquainted with Dr. 
William Gibson, Professor of Surgery in the University of Pennsyl- 
vania. He holds a distinguised position in the profession ; his book 
on the Institutes and Practice of Surgery is good authority, and is FOR ALLEGED MAL-PRACTICE. 
37 
used in many of the medical schools in this country. His work com- 
pares well with any similar works that have been published by any 
author in this country. 
Interrogatory 1.—How would you regard a double oblique com- 
pound comminuted fracture of the upper third of the thigh bone, oc- 
casioned by the patient being crushed by a falling bank of earth, 
with great laceration of the soft pai’ts, and a tumor of the size of a 
pint bowl at the seat of fracture, with great swelling of the whole 
thigh, as to its curability ? 
Ans. to Int. 1.—Such a fracture is very rare and very serious, 
and I should regard it as scarcely capable, under any treatment what- 
ever, of being so successfully treated as to present neither shortening 
nor deformity. 
Int. 2.—What would you think of the double inclined plane for 
such a fracture ? 
Ans. to Int. 2.—I should not have used the double inclined plane 
in such a case. 
Int. 3.—What does the anatomy and physiology of the muscles 
of the pelvis and the thigh require as to the elevation of the lower 
fragment of the thigh bone in order to its being kept in a line and in 
opposition with the upper fragment ? 
Ans.—It points out the propriety of such treatment when it can 
be practically applied ; and I think Gibson’s splint as well adapted to 
effect this as any splint in use at that time. 
Int. 4.—At what angle should the thigh be in relation to the body ? 
Ans.—So that the lower fragment should be in a line with the 
upper. 
Int. 5.—Of what importance in the treatment of fracture is per- 
fect rest of the fractured parts ? 
Ans.—It is so important that a good result ought not to be looked 
for without it. 
Int. 6.—What are the principles required in any splint for the 
cure of the fracture of the thigh bone, and by what means ? 
Ans.—The principles are the proper adjustment of the fracture, 
and maintaining of the parts in this relation by suitable mechanical 
contrivances. The means are, a degree of compression of the mus- 
cles by bandaging, but more especially by extension and counter 
extension. 
Int. 7.—What principles of the straight splint and of the double 38 
REPORT OF A TRIAL 
inclined plane does Gibson’s splint combine, and what do you <c 
of its use ? 
Ans.—It is designed to embrace the principles belonging to them 
both, and in some bad cases may be as good or perhaps better than 
either. 
Int. 8.—By what means was extension usually made in 1845, in 
fractures of the thigh bone ? 
Ans.—The gaiter was used whenever extension from the ankle 
was required. 
Int. 9.—Was the gaiter followed by any sort of inconvenience, 
and if so, what ? 
Ans.—It was sometimes followed by sores on the heel or instep. 
Int. 10.—How does Gibson’s splint compare with other splints in 
its tendency to produce these sores ? 
Ans.—It is not more liable to produce them than other splints. 
Int. 11.—How long ought a person 30 or 35 years of age to re- 
main in a splint and at rest, for the recovery of a double fracture of 
the upper thigh bone ? 
Ans.—Decidedly not less than eighty days. 
Int. 12.—What should you say of the use of Gibson’s splint in 
such a fracture of the thigh bone as is above described ? 
Ans.—It is a good and suitable splint. 
Int. 13.—How long have you been in the practice of medicine, 
and in what departments have you taught ? 
Ans.—I have practiced the profession about 48 years, and have 
taught Anatomy and Surgery 34 years. R. D. MUSSEY. 
Deposition of George Hayward.—I, George Hayward, of Bos- 
ton, in the Commonwealth of Massachusetts, Physician, of lawful age 
to testify, on oath depose and say in answer to the several interroga- 
tories proposed to me, as follows : 
Int. 1.—What is your age, residence and occupation ? 
Ans.—My age is sixty-two years, residence Boston, and occupa- 
tion the practice of Medicine and Surgery. 
Int. 2.—What experience have you had in the practice of Surgery ? 
Ans.—I have been in practice thirty-nine years, and was for 
twenty five years Surgeon to the Massachusetts General Hospital, and 
for fifteen years Professor of Surgery in the Medical School of Har- 
vard College. 
Int. 3.—Whether or not you are acquainted with Dr. Gibson, of FOR ALLEGED MAL-PRACTICE. 
39 
leiphia, and if so, is he good authority in surgical practice ? 
Ans.—I am acquainted with Dr. Gibson, and I regard him as high 
authority in surgery. 
Int. 4.—Are you acquainted with the principle of his splint, called 
the inclined plane, for the treatment of fractures of the thigh; and if 
so, how do you regard it ? 
Ans.—I am acquainted with the principle of his splint, and I re- 
gard it as a good one in cases of fracture of the thigh in the upper 
third of the shaft of the bone. 
Int. 5.—If a person had a double fracture of the thigh bone, the first 
fracture just below the small trochanter, and the other at or near the 
neck, the point of the bone nearly pricking through the skin, with 
great swelling of the part from the effusion of blood from wounded 
vessels, and the whole thigh greatly swollen, occasioned by a falling 
bank of earth, how should you regard Dr. Gibson’s inclined plane as 
a splint to dress it on, and afford a good opportunity for the bone to 
unite in proper form and time ? 
Ans.—I should regard Dr. Gibson’s splint as one well calculated 
to answer the purpose. 
Int. 6.—How long ought a person with the above described frac- 
ture to remain on or in a splint for firm union to take place, so that 
the splint may be laid aside without fear of a shortening of the limb ? 
Ans.—In a fracture of that kind I should say seven weeks at the 
least; and even then the patient ought not to bear any weight upon 
or use the limb, as it might then produce shortening and deformity. 
Int. 7.—Would you treat such a fracture as above described in a 
straight, horizontal splint ? 
Ans.—No, I should not. 
Int. 8.—What would be the effect to take a person with the above 
described fracture from the splint on the thirty-second day of treat- 
ment and carry him a distance of three miles and not use the splint 
afterwards ? 
Ans.—In all probability there would ensue shortening and deformity 
of the limb. 
Int. 9.—In fractures of the thigh bone just below the trochanter 
minor, what has been the usual condition of the limb, after union has 
taken place, in your experience ? 
Ans.—In the best recoveries, under the best treatment, a shortening 
of one inch is as little as can be reasonably expected. 40 
REPORT OF A TRIAL 
Int. 10.—In fractures of the thigh bone, when extension and 
counter extension is used, are excoriations or ulcerations on the heels 
and ankles a frequent result, and to what are they owing ? 
Ans.—They are a very frequent result, and they may be owing to 
the pressure of the bandages, gaiters, or whatever mode is used for 
making extensions, or to the general state of the patient’s health, or 
to the nature of the injury, and sometimes to the weight of the limb 
itself. It is in some cases very difficult to avoid ulcerations. 
Int. 11.—In any case to your knowledge, have excoriations or 
ulcerations of the heel been owing to the splint, or can they in any 
case be chargeable to the splint itself? 
Ans.—I think not. 
Int. 12.—In the treatment of such a fracture as above described, 
what must be the nature of the extension ; steady, or may it be from 
time to time relaxed ? 
Ans.—It must, by all means, be steadily kept up. 
Int. 13.—What would be the effect, in such a case as described, 
of taking the limb out of the splint for a few minutes, from time to 
time, by nurses and watchers, previous to the thirty-second day ? 
Ans.—I should say that it could only be done at the risk of pro- 
ducing displacement of the fractured ends of the bone. 
Int. 14.—At how late a period, in your opinion, will deformity or 
curvature present itself in a fractured limb? 
Ans.—As late as the fourth month, I think. 
GEO. HAYWARD. 
Dr. Henry B. Brown, called. Am a Physician; been in prac- 
tice 26 years. About 12th April 1845, I was at the office of defend- 
ant, and a messenger came saying that Slack was severely injured, 
and requested defendant to go. He remarked that he was quite 
unwell, and declined going. I think Dr. Crosby remarked, here is a 
physician, perhaps you can get him to go. The messenger asked 
me, and I went immediately to the house of Estabrook. I found 
plaintiff lying upon floor, apparently very severely injured, breathing 
badly, and making much complaint of soreness. One limb lay in a 
position that indicated fractui’e. He lay as he was brought in, his 
clothes on, dirty. Made no examination ; prepared a bed. Whilst 
arranging the bed, Dr. Davis came in. After the bed was prepared, 
we carried him to bed, placed him on it. I carried broken limb; had FOR ALLEGED MAL-PRACTICE. 
41 
several assistants. I came to the conclusion from the crepitus motion 
of broken bones—I had one hand under thigh—that the limb was se- 
verely crushed and broken. After placing him upon the bed I exam- 
ined place of injury as well as I could, and came to the conclusion 
there was a double fracture, two fractures; difficult describing it. 
[ Describes how he thought it broken.] Point of upper fragment was 
outward and upward obliquely; also broken near neck ; considerably 
swollen at the time ; large tumor. Dr. Davis and I both came to the 
conclusion it was broken at the neck, or near there—we could not tell 
exactly. Severe laceration of soft parts, being pretty nearly a com- 
pound fracture; bone did not come quite through skin, but could be 
felt. Large swelling at the point of fracture—as large, I should think, 
as a pint dish, if in same shape ; supposed it occasioned by ends of 
bones tearing the flesh, and blood. After making the necessary ex- 
amination, Dr. Davis made extension, by taking hold at the foot, others 
at shoulders. I placed the limb in position. We then went and talked 
the case over; and as we considered it a severe case, and had no ap- 
paratus for dressing it, we concluded to go to Hanover to defendant. 
We went for the purpose of representing the case to him and getting 
his opinion as to best method of treating the case, or getting him to 
go himself. In explaining case to defendant, he rather coincided with 
us, and said he had no proper apparatus for dressing the limb. We 
then talked of the kind of splint to be used, and he took out from his 
library one or more books, and on looking over we came across this 
splint in Gibson’s Surgery, which we examined more particularly. 
We talked of the advantages on looking at plate, and all concurred 
that that was the best that could be adopted. We asked defendant if 
he did not think he could go over, and over-persuaded him to go. He 
finally went. Davis and I went right back, and think Davis took the 
book and carried it to Norwich to have splint made by. I don’t re- 
member what was done immediately after our return. Guess Dr. 
Davis said Estabrook could make splint, and don’t know but he 
showed him the plate. When Dr. Crosby came he looked plaintiff 
over, did not examine him particularly ; might have put his hand up- 
on him—examined his pulse, felt of his leg—but not to handle him 
any. He was hurt internally. I rather wanted him to examine to 
see if I was right. He said it would only cause unnecessary pain;— 
he was more swollen than when I left him, and he declined doing it. 
In my opinion it would have created unnecessary pain. It occurred 42 
REPORT OF A TRIAL 
to me then, that from the nature of the injury, that was the best kind 
of splint; and have examined since more into the nature of the splint, 
and am still of the same opinion. I then left, and had no more to do 
with it; I never was called to go again. Reason why I did not go 
again, from the fact that Dr. Davis took charge of the case, and I had 
no invitation to come again. My present opinion of the advantages 
of the splint used for that particular case over other splints:—The 
impracticability of applying the straight splint by reason of injury 
outside of thigh, was one reason I have, from the conclusion, so much 
laceration and swelling, difficulty of applying straight splint by reason 
of the pressure upon the injured part. In next place, counter extend- 
ing band would have tendency to fling upper fragment out of position. 
[ Describes application of straight splint.] Straight splint is made 
with single board running up the side, with holes in it, and counter 
extending bands make constant pressure of board upon the wound, 
nnd difficult getting sufficient extension ; would also have tendency 
to tilt up the bone. Over double inclined plane could not get sufficient 
extension and counter extension. Being fractured high up near the 
neck, more difficult keeping bones in position than if fractured nearer 
the centre. With straight horizontal splint could not control the frag- 
ment from tilting up. In my practice, in using the double inclined 
plane, have had to apply bands, or something to keep bones in place 
and confine limb in splint. In this case, would have been difficult to 
do this. The whole thigh was badly swollen ; discoloration half way 
down the thigh. It was bruised in addition by falling of dirt upon it. 
There would be more difficulty in the double inclined to dress the 
wound than in the single inclined plane. Commonly use three or four 
short splints with double inclined plane, confined with bandage. They 
all come together from market. Think it would not have been ad- 
missible to apply such an one in this case. Have impression that 
counter extending band on straight splint would create excoriation. 
In double inclined, danger of excoriation of the ham. I think Gib- 
son’s contains all the principles of the three splints. We get exten- 
sion from the foot, counter extension from weight of the body, flexion 
from thighs being thrown up towards pelvis. The convenience for 
stools is an advantage over every other splint. So constructed it can 
be done without moving the patient. Effect of frequent wetting of 
feet and ankles is to increase tendency to soreness; skin becomes 
wrinkled and more easily affected. Effect of nurses removing the FOR ALLEGED MAL-PRACT1CE. 
43 
fastenings or extension straps would be to shorten the limb. Effect 
to take out of the splint before proper time is to displace the bone. 
Proper time for confinement to splint is from two to three months. 
Depends a good deal upon how the patient has been treated and the 
general health of patient. Know of nothing in this splint to make 
excoriations more than the double inclined or straight splints. Have 
recently—nearly a year since—examined his limb; saw nothing to 
change my opinion of the nature of the fracture; if any thing, it was 
confirmed. Shortening might have been both from slipping by of 
the bones and by curvature. 
Cross examination. Have known defendant 30 years. Defendant 
has been in practice 29 years. Considered good authority as a sur- 
geon. Think he is the surgeon resorted to in that region for advico 
and assistance. That the reason we went to him was because we 
thought he knew more about it than we did. We made some exami- 
nation before going to Crosby’s. On further examination thought it 
smashed up or crushed. I came to the conclusion there were two 
fractures. On carrying patient to bed, impression it was crushed. 
After getting him upon bed, came to the conclusion it was a double 
fracture. Usually move the limb one way and the other, and surgeon 
keeps his fingers upon the limb. We (Dr. Davis and I) did so in this 
case, and both came to the same conclusion. Crepitus means grating 
of ends of bones together. Sometimes get location of fracture by 
feeling, sometimes by the ear. If crushed it could not be straightened. 
Never made any after examination of the fracture. I have been in- 
formed by attending court, by reading the authors, not by Dr. Crosby 
—have not seen Dr. Crosby for a year—not to talk in regard to this 
matter; not since the examination at White River in July last year, I 
think it was,—except his speaking to me a short time since about 
coming to court. I have treated several fractures of thighs since last 
court, and before. Had seen Dr. Gibson’s Surgery and splint, but 
made no particular examination of it till that occurrence. It has been 
used before. Think defendant told me he had never used it, at the 
time. I should not select Gibson’s in all cases of the thigh. If sim- 
ple fracture of the thigh, where there is no tendency to shorten, I 
should use either the double inclined plane or the straight splint. In 
a simple transverse fracture, no difficulty except to keep bones in 
opposition ; splint necessary for that. If I had a simple oblique frac- 
ture, should use double inclined plane. More danger of tilting up of 44 
REPORT OF A TRIAL 
bone in a case so high up, than in many others. More danger of 
tilting in a simple oblique than simple transverse fracture. In simple 
transverse fracture, bones not so readily tilted up. Difficulty is to 
keep bones in place. In simple transverse, I should apply straight 
splint, many tailed bandage, cushion splint, and strap these splints 
close to the body. 
[ Here suspended to accommodate Dr. Davis to go to Norwich to see a patient nearly dying.] 
Dr. Ira Davis, called.—In April, 1845,—about the 12th,—I was 
called by a messenger to go and see Mr. Slack, who, it was said, was 
injured by the falling of a bank of earth. I found him at Edwin Es- 
tabrook’s ; Dr. Brown there; plaintiff lying on floor, clothes on, as 
taken out. We took measures to get him on to bed, think as Dr. 
Brown has described. The fracture, in the first place, very nearly a 
compound fracture; bone was tilted up, and formed quite a tumor ; 
little more than the scarf skin left between; some discoloration of 
parts; tumefaction bare, think six inches in diameter, about the size 
of a pint bowl. (See Plate No. 1.) Brom examination it appeared 
to me that the fracture was from two to three inches from trochanter 
minor. I thought there was another fracture. Can’t say that I de- 
termined in my own mind where the other was. It was discussed by 
Dr. Lewis and the rest of us, and quite evident that there was another 
higher up. Difficult to tell how far from trochanter. After examin- 
ing the case, concluded it was a bad case, and we had no dressings. 
We learned defendant had been sent for and could not come. Went 
to see if he had suitable dressings; if not, if possible, to get him to 
come over. We described the case as accurately as we could, and 
he said he had no proper apparatus. We looked over books, and 
came to Gibson’s splint, and suggested that as best. This splint had 
two properties that recommended it. The double inclined plane I 
thought improper; could not get extension, on account of having to 
apply bandages,—which this case would not admit of. Another was, 
this splint left the patient exposed to treatment—no bandage in the 
Plate Kb. 1.* 
* The fracture as described by Dr. Davis; the upper fragment tilted up by 
the action of the Psoas and Iliacus muscles. FOR ALLEGED MAL-PRACTICE. 
45 
way—whole limb left exposed and still sufficient extension. Another 
thing was convenience for stools. I carried the book down, I think, 
Plate No. 2.* 
Plate No. 3.t 
* Plate No. 2 shows the advantage of position on the inclined plane, the 
lower fragment of the bone being brought upon a line with the upper. 
fThe same, showing the position of the patient on Gibson’s splint, which 
is described by Dr. Gibson as follows: 
“ With this view I contrived the following machine : consisting of a board 
sixteen inches wide, two feet four inches high, placed vertically, with six 
mortises near its upper extremity ; of another board of similar length and 
breadth placed horizontally; of a third, three feet in length, and extending 
from the extremity of the horizontal piece to within ten inches of the top of 
the upright one, so as to form an inclined plane* The whole being joined to- 
gether, present the figure of an unequal triangle. At the lower extremity of 
the inclined plane, an opening is left six inches wide, and eight long, with a 
corresponding door, intended to convey a vessel beneath the patient to receive 
the faeces or urine. Opposite this there is another and a larger opening, of a 
circular form, in the horizontal board, to afford ample room for the pan to rest. 46 
REPORT OF A TRIAL 
and gave it to Mr. Estabrook. He examined the plate, and said ho 
could make one. Pretty soon Dr. Crosby came, and I don’t know as 
I gave any directions; don’t know as any body did. Splint made 
according to book. Next morning a good deal swollen. Day before 
(Saturday) presume some one spoke to defendant to come and assist 
in putting him into the splint. Next day he was put into the splint. 
I attended upon him after that for some time, twice or three times a 
day. Plaintiff had then a child sick which 1 was attending upon. 1 
had previously practised in his family some, and Dr. Converse some, 
and Dr. Lewis, I should think. Plaintiff expressed no objection to my 
continuing in attendance; don’t know as I had any conversation with 
plaintiff about defendant’s calling on him again. Some two or three 
days after dressing, he complained a good deal, and I examined and 
found two or three broken ribs, which accounted for his restlessness; 
this on right side ; two certain, don’t know but more. It was neces- 
sary to use anodynes,—not certain but morphine,—not certain but 
McMunn’s Elixir, a preparation of opium. Watchers after a while 
got in habit of relaxing fastenings. He complained, after a week, or 
some days, of his feet. I gave directions to keep up extension, and 
not to wet the gaiters, but wet the limb at the point of fracture with 
spirit and water, and keep gaiters dry, and wet wherever heat was, 
except the gaiters. Gaiters were wet from time to time ; I did not 
see them wet. I directed extension kept up ; I found on one occasion 
straps loosened, a handkerchief around the limb, and foot loose. 
Taylor Slack had watched, and I found it loose and handkerchief 
around it; don’t know who put it there. I objected to their removing 
plaintiff when they did. My impi'ession is it was 32 days of being in 
splint. I made objection to any body that said any thing to me about 
it. Made it in plaintiff’s presence,—talked about it several times. 
Plaintiff was very anxious to get home, and control his spring’s work. 
There are, likewise, two mattresses, two foot cushions, and a pair of gaiters. 
It -will be seen in a moment how this machine operates. The two feet, by 
means of the gaiters, are placed on a level, and there retained; the lower 
fragment of bone cannot, therefore, be drawn upon the posterior surface of 
the upper fragment, as usually happens in oblique fractures, but must be kept 
in its natural situation ; the weight of the body hanging by, and operating 
upon the superior fragment, draws it downwards, removes it from the inferior 
fragment so as to prevent overlapping, and thereby preserves the -whole limb 
of its natural length,—extension being made upon the ankles, counter exten- 
sion by the weight of the body.”—Gibson’s Surgery, sixth edition, vol. I. pp. 
$21 and 323. FOR ALLEGED MALPRACTICE. 
47 
My objection was, the fear it might produce a distorted limb. Neigh- 
bors had prepared a sort of litter to carry him on their shoulders. 
This was nearly prepared when I came down. I objected to the re- 
moval, and felt pretty cross. They all insisted on his removal, as his 
business was suffering. I went away, and was sent for ; after sent 
for second time, I went, and found the die was cast; and suggested 
to them to cut a bark and put around limb. They wanted I should 
put it on. He was taken out of splint, lying on bed, limb horizontal. 
They wanted I should put on bark ; I did so ; but would not consent 
to his removal. I measured the limb that morning; there was from 
1-4 to 1-3 of an inch—not over 1-3 certainly—shortening. After ho 
got home some days, I measured again, and found no perceptible dif- 
ference. I continued to attend upon him a couple of weeks after this, 
to the time Dr. Converse or Pierce attended. After carried home, ho 
was not put upon splint again ; splint not carried there. I procured 
a rough double inclined plane and put it on that. After he got homo 
—about a week after—(think the eighth day after,) I found a short- 
ening; I found limb curved out. Think I was sent for, saying, “ limb 
had got out of place.” (He had become uneasy and bark was taken 
off.) I went up, and found considerable of a curve at the point of 
fracture. I could not extend it to its proper length, but succeeded 
partially. At some time,—can’t tell when,—he was put on a chair. 
Think he was put on double inclined plane same day he was carried 
home. When sent for, I found limb curved, and applied force and 
tried to get proper extension and restore length of limb. Don’t re- 
member who assisted. Some neighbors in; rather think Orange 
Lyman was one. Rather think it was old Mr. Slack who went for me. 
I once discovered that thick skin had been removed from left heel; 
plaintiff informed me that his brother David took it off. I was at the 
house of Mr. Blaisdell; he was sick with an abscess; can’t tell what 
year it was; and Dr. Crosby was there. Don’t remember an expres- 
sion used by defendant at that time; don’t recollect any such talk; 
don’t remember any such talk any where. I inquired of defendant if 
he had used such a splint, while he was at Estabrook’s, the day limb 
was set. He said he had not. Think he said he had once used the 
straight, and one leg was crooked and could not be confined. I first 
used a strip of cotton cloth above the knee to relieve ankles, while at 
Estabrook’s. Ankle had become inflamed and sore. So far as I 
have had experience, sores were more or less frequent at the point 48 
REPORT OF A TRIAL 
where extension is made. I attribute sores in part to the extension 
and in part to the wetting. So far as the splint is concerned, this 
not different from double or straight. I at the time concurred in the 
propriety of this splint, and have not changed my mind. Had he con- 
tinued in splint 30 days longer, I think, with regard to the fracture, 
the limb would have come out good,—very little shortening. I don’t 
know but difficulty with heels might have been more; can’t tell. 
Could have relieved the pressure. Perhaps in a couple of weeks 
more it might have answered to put him upon a double inclined plane. 
I think, if gaiters had not been wet, the sores would have been less. 
At first dressing, the leg rested upon a quilt made of a comforter, 
and quilted with cotton batting. Form of gaiter (shown) is similar to 
the one used. Can’t say whether batting was according to directions 
in the book. 
Cross examination. I have practiced medicine 30 years ; have prac- 
ticed surgery some; drawn teeth, and bled, and reduced some dislo- 
cations. Not called upon to perform any important operations. 
Practice of medicine my general business ; occasionally have attended 
a broken limb, but more usually, dislocated limbs. I put up the med- 
icines and he took considerable. There was no particular surgical 
skill to be exercised, except to keep limb in place, and keep up ex- 
tension. When we dressed the limb I have impression I inquired as 
to applications to be made. So far as surgery was concerned I sup- 
posed that was finished after dressings were put on. Don’t know as 
I ever called on defendant but once afterwards, about it. Dr. Crosby 
called with me once, perhaps a couple of weeks after, and perhaps 
more ; no recollection of his calling but that once. A great many 
persons were present when plaintiff was put into the splint; defendant 
superintended it, of course. Don’t say I never had talk with defend- 
ant about limb but that once—that he didn’t call but once. He 
thought, of course, extension must be kept up. As to external appli- 
cations, my impressions were that treatment was to be same as in 
any other inflammation. I suggested that to Dr. Crosby; he con- 
curred in it. I supposed it a common sense idea, still I suggested it 
to Dr.Crosby; I always pay due deference to higher powers. At 
Estabrook’s he complained of feet and ankles; think greatest com- 
plaint was in right ankle, till relieved. Presume I was in habit of 
reporting to Dr. Crosby when I met him, but cannot remember time FOR ALLEGED MAL-PRACTICE. 
49 
or place. Am satisfied I told him he must not loosen it. I can’t say 
but the time Dr. Crosby called with me I met him in the road and 
told him patient was very uneasy and restless, and invited him to call 
and get him settled down. Think I told' him he wanted extension 
taken off. Well limb was released,—I can’t fix the time,—it was 
before he left Estabrook’s. I can’t say whether it was at the time 
he called, or subsequent. If not done at that time, probably done 
without his direction ; can’t fix the time. I don’t recollect inquiring 
of him afterwards. Probability is, before that, that when I saw him 
I did state the case to him. We bolstered up the ribs as well as we 
could. The skin became parboiled ; ankles became inflamed and 
excoriated. Have the impression that on instep of broken limb there 
was some blistering. I loosened straps frequently and put in batting 
and relaxed straps at foot-board. Put underneath outside gaiter, tufts 
of cotton, and something under ankle, to relieve. Did this several 
times. Tucked batting down under gaiter to relieve pressure. It 
was sore—was painful. Think it was a suggestion of my own. It 
was rather a natural one, to soften. I don’t call to mind any one 
else suggesting it to me. I don’t know that I ever undertook to com- 
pare so as to be competent to decide the comparative merits of tho 
various kinds of splints. This excels the double inclined because it 
supercedes the necessity of bandaging or strapping. In single in- 
clined plane, counter extension is made by body; in double, some- 
what so ; the knee rests upon splint. If limb is straight it is operating 
all the time. They always use bandages and short splints on the 
double inclined plane and not on Gibson’s. Never saw that used but 
once. That had none, and no need of any. Have seen double 
inclined used—always used them. The counter extension most at 
the other end from the extension. I measured limb with a tape and 
judged of difference by the eye: Measured the two limbs ; measured 
them frequently; have measured other subjects. Don’t know as I 
examined his heels, in particular, after he got home; examined at 
Estabrook’s; discovered sores on ankles; none then on heels. Not 
very long after, think in a day or two, he showed me his heels. Think 
there was not ulceration at that time. I afterwards discovered ulcer- 
ations; can’t tell what time. He was feeble when he was carried 
home. The ankles and heels had been growing more tender. Con- 
sidering his state of health, I do not know of any objection to his 
bearing further extension. Might have borne it, although uncomfort- REPORT OF A TRIAL 
50 
able. Can’t tell what would have been the consequence of putting 
him in again. If he would have kept quiet, he would have endured ; 
a great deal depends on keeping quiet. He might have endured 
longer. More comfortable to patient not to lie in splint. As far as 
irritation is concerned, and restoration of general system, (without 
reference to fracture,) would have progressed better without being 
on splint. Whether as to being confined solely to gaiters, I should 
think he had better not. Might have been changed; pressure was 
changed, I think at suggestion of Dr. Sweatt, by putting band around 
above knee and fastening to foot-board ; I then loosened straps at 
feet. Presume not a great while at a time, perhaps half an hour or 
an hour at a time. Can’t remember; perhaps two hours ; not so long 
as to disturb circulation. About a week after he got home, some 
displacement; a curvature; I supposed the union was not a bony 
union at that time ; not severed entirely, as I could not perceive the 
sharp point of bone. I applied force to restore it to proper length. 
Did not intend to separate the union. The muscular resistance was 
great. He continued on the double inclined plane I think more than 
two or three days. Can’t tell how long. Think till I got him into 
chair. Not certain but he continued on double inclined plane 
afterwards. Not certain about that. 
Re-examination. I have treated a few cases of fracture after 
put upon splints. I always avoid such cases if I can. My im- 
pression is, I met defendant in the road. I asked him to go in to 
quiet Slack’s nerves—to quiet Mr. Slack down. I was attending upon 
him, and called upon him. I called upon Dr. Sweatt. He was at 
my house and I invited him to go down with me and quiet him down. 
My impression is that when I called on Dr. Sweatt, there had been 
talk of carrying him home. I took the liberty to invite in any physician. 
My impression was the pressure might have been shifted and he kept 
on splint till it would answer to move him home, with reference to a 
proper cure of the fracture—having more reference to that than any 
thing else. At Estabrook’s I think there was some sort of apparatus, 
or pulley, attached, to relieve pressure at foot-board. It then began 
gradually to shorten. Not much shortening previous to that time. 
After displacement at Slack’s, heels were let entirely down. Think 
heels were worse after this than before. Heel grew sore more rapidly 
after scarf skin was taken off. I have had three cases, in Norwich, 
of fractured thigh. There I had charge of them from commence- FOR ALLEGED MAL-PRACTICE. 
51 
ment. Also other fractures. Had no other case since this case. 
2nd Cross examination. I never sought after surgical cases. Can’t 
tell what defendant did to quiet plaintiff; think he told him he must 
remain in the splint to have a perfect recovery; don’t know but he 
mentioned the length of time ; don’t remember what he did say and 
do. I think the old skin had better been left on. 
Deposition of William Slack.—I, William Slack, of Norwich, 
County of Windsor and State of Vermont, of lawful age, depose 
and say, that I am father of Lorenzo Slack, of Norwich, that I was 
present at Edwin Estabrook’s on Sunday morning, when said Loren- 
zo Slack was first put into the splint, and at that time had a conver- 
sation with Dr. Crosby respecting the reason for using that particular 
kind of a splint, which was because, as the limb was badly bruised 
and blackened, there was danger of mortification unless it was kept 
cool, and an opportunity for the air to circulate about it, and to make 
applications to it; and I observed, that from the position of the leg 
upon the splint, such would be the fact. From the smashed condition 
and black appearance of the limb, and his general appearance, I 
thought it doubtful whether he ever recovered. I saw the said Lo- 
renzo quite a number of times while at Estabrook’s; from time to 
time as I saw him, I thought from all I could learn he was getting 
along as well as I could expect. 1 was there when Lorenzo was 
taken from the splint; Ebenezer Spear, Esq., Orange Lyman, Dr. 
Ira Davis, Edwin Estabrook,and several others whose names I cannot 
recall, were present at that time and assisted in his removal. Lorenzo 
had been anxious for a number of days to be carried home. He 
said he could be taken care of at less expense. Dr. Ira Davis was 
his attending physician, and the only one that I saw there except at 
the time when he was put into the splint, when Dr. Crosby was pres- 
ent, as above stated. Dr. Davis advised Lorenzo not to be moved ; if 
he would stay awhile longer he could be removed without injuring 
him. Dr. Davis told him he was doing well, and if he went home 
he must go on his own responsibility, and not on his. Dr. Davis told 
him he would not assist him in his removal, because he would not take 
any responsibility. I heard him tell Lorenzo if he staid there he 
thought he would get up with a good limb, but if he went away he 
was afraid it would injure him. Dr. Davis left the house, and I after- 
wards found him at Dr. Lewis’, and endeavored to persuade him to 
return to Estabrook’s, and he so returned; he told Lorenzo he would 52 
REPORT OF A TRIAL 
take no responsibility with regard to his removal. Lorenzo said he 
should go home. Dr. Davis finally attended to assist in fixing him up, 
saying he should take no responsibility and thought he ought not to 
go. Dr. Davis sent a man into the woods to procure a piece of pine 
bark, directing him what size and length ; this was procured, and the 
limb placed in it. I saw Dr. Davis measure the limb, I think after the 
splint was removed, he showed me the difference in the length of the 
limbs, and it was from a quarter to a third .of an inch, the lame limb 
being the shortest. Lorenzo was carried home upon something re- 
sembling a bier, borne upon men’s shoulders; I went with those that 
carried him; he occupied his time among other things by playing 
upon a Jew’s harp. Dr. Davis again measured his limb after he got 
home, and said he thought it was not injured any; he so told Lo- 
renzo ; after he was removed to his own house, I should think that I 
saw him oftener or as often as while at Estabrook’s; I think I had 
seen him two or three times after he was carried home, and heard 
nothing from Lorenzo or any one else but what the leg was as well as 
when he was brought home. One day after this I went up to see him ; 
I thought that it lay crooked; I told him that he ought to have the 
Doctor, and I went immediately for Dr. Davis ; we waited there to 
have a splint finished ; as soon as it was finished, we took the splint 
and went up to Lorenzo’s. 
Questions by Defendant. 
Int. 1.—Was Dr. Crosby present at the time Lorenzo was taken 
from the splint and carried home from Estabrook’s, or not ? 
Ans.—He was not in my sight, nor did I hear his name mentioned. 
Int. 2.—Did you or not ever hear Lorenzo while at Estabrook’s, 
complain that Dr. Crosby did not visit or attend upon him, or that Dr. 
Crosby neglected him ? 
Ans.—I never did that I know of. 
Int. 3.—Did you or not ever hear Lorenzo, while at Estabrook’s, 
express any expectation that Dr. Crosby would call again as a physi- 
cian or surgeon ? 
Ans.—I did not. 
Cross examined by Plaintiff. 
Int. 1.—What did you see Dr. Crosby do or overhear him say the 
Sunday morning that Mr. Lorenzo Slack was put into the splint ? 
Ans.—I saw Dr. Crosby holding the splint, and heard him say 
something about making some alterations. FOE. ALLEGED MAL-PRACTICE. 
53 
Int. 2.—What did you hear Dr. Crosby say after he was put upon 
the splint ? 
Ans.—He must be as patient as he could, and “ we think we have 
got you placed in the best position we could I think Lorenzo said 
in conversation that he must call and see him again, and I think he 
said he would. 
Int. 3—Why did the plaintiff say that he would go home ? 
Ans.—He had various reasons; thought that he should be better 
off, as he should be at home. . 
Int. 4.—What did Dr. Davis measure my limb with ? 
Ans.—With a white tape. He measured it by putting the tape 
along from the top of the upper part of the thigh and running down 
on the side to the lower end. I saw no other measure. 
Int. 5.—What did plaintiff most complain of while at Estabrook’s, 
in your hearing ? 
Ans.—Of being tired out, worn out. 
Int. 6.—What particular parts did plaintiff complain of most ? 
Ans.—It was different at different times; sometimes he had more 
pain in the well leg than the other, and at other times he complained 
more of the broken leg, referring the pain sometimes to the broken 
part and sometimes to his heels and ankles, cannot pick it out. 
Int. 7.—Did you know that there was any sores upon plaintiff’s 
heels or ankles at the time he was removed from Estabrook’s ? 
Ans.—I saw sores on his ankles, and heard there were sores on his 
heels, but did not see them. Saw chafed spots on the ankle, but do 
not recollect of seeing any running sores. Saw a redness about the 
ancle, but did not notice that it was swollen. 
Int. 8.—Were plaintiff’s complainings more or less after he was 
removed ? 
Ans.—As a general thing, I should think he complained more 
while at Estabrook’s. 
Questions by Defendant. 
Int. 1.—Did Lorenzo Slack, or not, at the time of the conversation 
between himself and Dr. Crosby, request the Doctor to give any fur- 
ther attendance upon him as a surgeon or physician ? 
Ans.—He did not, to my understanding. 
Int. 2.—Who had the care and attention of Lorenzo while at Es- 
tabrook’s ? 
Ans.—I never knew of any one but Dr. Davis. 54 
REPORT OF A TRIAL 
Int. 3.—Was Lorenzo crazy or delirious while at Estabrook’s, and 
if so, how much and when ? 
Ans.—The day his leg was set I thought he was wandering or out 
of his right mind. The next time that I was there, he said he did not 
know that I was there the day he was put into the splint. I did not 
know, or observe, that he was wandering afterwards. 
Question by Plaintiff. 
Int. 1.—Did you, the day you saw me put into the splint, ask any 
questions that I did not answer correctly ? 
Ans.—I do not remember of asking any questions. 
WILLIAM SLACK. 
Deposition of Jonathan Freeman.—I, Jonathan Freeman, of 
Freehold, in the County of Monmouth and State of New Jersey, of 
lawful age, depose and say, that in the years 1846 and 1847 I was a 
resident in the town of Hanover, in the county of Grafton and State 
of New Hampshire, of which town I had then been town clerk thirty- 
four years. In said year of 1847, and also in the previous year, 1846, 
I was accountant and collector for Dr. Dixi Crosby, of said Hanover. 
In the month of December, 1846,1 entered in a pass-book, which is 
now in my possession, a list of accounts which I had copied from said 
Crosby’s ledger, as I had been employed as his agent to draw off cop- 
ies of bills of account, and to present the same to his debtors for settle- 
ment. On the 9th day of January, 1847, I presented a bill from the 
bundle of bills in my possession, to Lorenzo Slack, of Norwich, Vt., 
which said bill was a copy of said Crosby’s account against said Lo- 
renzo Slack, and at the same time informed said Slack that it was a 
copy of Dr. Dixi Crosby’s account against him for professional ser- 
vices rendered him, and from the bill read to him the amount, which 
was six dollars, and at the same time informed him that I was an au- 
thorized agent to receive payment of the bill. Slack said he had 
never employed Dr. Crosby, and would never pay him ; and if ever 
he got any thing, he would have to get it of Dr. Davis, who did employ 
him. Slack became enraged, uttered much profane language, and 
complained of the account having been charged to himself. The ac- 
count was presented to Slack in the presence of one or more persons, 
who were strangers to me. From my memorandum and the dates 
which I entered upon it at the time, I am enabled to know the amount 
of the account and the time of presenting it. I furthermore state that FOR ALLEGED MAL-PRACTICE. 
55 
the bill hereunto annexed is the same bill which I presented to said 
Slack; that it is in my own hand-writing, and that it is the only bill 
which I ever drew off or presented to said Slack in favor of said 
Crosby: 
Mb. Lorenzo Slack, 
1845. To Dixi Crosby, Dr. 
April 12. To visit and adv., .... $1,00 
“ 13. “ “ att’d and applying fracture app., . . 5,00 
A $6,00 
The annexed bill, marked A, is the bill above mentioned, and fur- 
thermore your deponent saith not. JONATHAN FREEMAN. 
Deposition of Hannah Ramsdell.—I, Hannah Ramsdell, of law- 
ful age, depose and say that I am sister of Lorenzo Slack, of Norwich, 
in the State of Vermont, that I was at his house when the news came 
that he was injured by a bank of earth falling upon him. On the next 
Tuesday, think it was, I went to the house of Mr. Edwin Estabrook, 
in said Norwich, where my brother was, and remained there, nursed 
and took care of him for about one week. I was then absent four or 
five days, and Mrs. Brigham, my sister, came there before I left and 
remained during my absence. I then came back and stayed another 
week, after which I nursed him no more. 
Int. 1.—Please state where and in what position your brother was, 
when you first saw him ? 
Ans.—He was lying upon a bed, with his head and shoulders raised 
by pillows, his legs lying upon a splint and his feet fastened to a foot- 
board by gaiters. 
Int. 2.—State what physician or physicians attended him, and 
dressed his limb, and had the charge of him ? 
Ans.—Dr. Ira Davis, of said Norwich, who married my sister, was 
the only physician that I saw do any thing for him, or heard give any 
directions. 
Int. 3.—Please state what the directions given by Dr. Davis for the 
management of your brother during his absence were, if any ? 
Ans.—He directed us to wet the broken leg at the place of fracture, 
which was black and blue, with spirit and water. He also left some 
drops, which he called Mr. Munn’s Elixir, which we were to give him 
when he was restless and could not sleep. 
Int. 4.—Please state whether or not you had any directions in re- 
gard to the position of his feet; if yea, state what the directions were ? 56 
REPORT OF A TRIAL 
Ans.—Dr. Davis directed that his feet should remain just as he left 
them. 
Int. 5.—Please state what was your management of the injured 
limb when Dr. Davis was not present ? 
Ans.—Lorenzo often complained of heat and itching of his heels, 
ankle, and instep, and wanted them wet with rum, which we fre- 
quently did. We also untied the strings which held his feet to the 
foot-board and loosened the lacing strings of the gaiters, so that we 
could scratch the parts that itched. 
Int. 6.—State whether or not Dr. Davis complained of this treat- 
ment of the patient ? 
Ans.—He said it would make the gaiters stiff and the heels tender, 
which would increase the danger of sores. 
Int. 7.—State whether or not Dr. Davis made extension of the bro- 
ken leg from any other place except the ankle ? 
Ans.—He fastened some striped webbing to the knee by winding 
the bandage around the knee and carrying the webbing to the foot- 
board. I think this was applied about the time I went the second time 
to take care of my brother. 
Int. 8.—State what means, if any, he had for raising the heel from 
the splint ? 
Ans.—He had a string or line made fast to the great toe of the in- 
jured leg, which passed over a pulley suspended over his bed, and he 
held the string in his hand, or had it where he could reach it when he 
chose. 
Int. 9.—State whether or not he made use of this means for raising 
his leg ? 
Ans.—He did very frequently use it. 
Int. 10.—State whether or not your brother ever complained of the 
splint used and asked to have it removed ? 
Ans.—He never complained of it in my presence, nor asked to 
have it removed. 
Int. 11.—State whether or not you ever saw or heard of sores on 
your brother’s heels or ankles while you were at Estabrook’s; also 
whether or not you should have known if there had been sores ? 
Ans.—l never saw or heard of any on his heels or ankles while he 
was at Estabrook’s, and I certainly should have known it if there had 
been any. 
Int. 12.—State whether or not you saw him at Estabrook’s after 
you left nursing him ? FOR ALLEGED MAL-PRACTICE. 
57 
Ans.—I saw him once, about a week after I left there. 
Int. 13.—State whether or not you ever found the fastenings at 
the foot-board looser in the morning than you left them the night 
before, and appearing to have been untied ? 
Ans.—I frequently found them looser and appearing to have been 
untied, and Lorenzo said the watchers would let them down more 
than I did, and he would ask to have them drawn up into place before 
the doctor came. HANNAH RAMSDELL. 
Ebenezer Spear, called. I lived four miles from where Mr. 
Slack was hurt, and one mile from his house. I watched once at 
Estabrook’s, when he had been there a week, or over. I found him 
on the machine described, exercised with a good deal of pain, of 
course. He requested me to loosen the extension. I objected, be- 
cause I understood the doctor’s instructions were, not to do it. He 
said other watchers had done so, and it seemed to relieve him. I 
complied with his request. I raised the weight some, and held it in 
my hand a few moments at a time. Directions were, to wet the leg 
near the knee. Do not recollect whether I wet his ankles, or not. 
Mrs. Brigham, Mr. Slack’s sister, was taking care of him then. She 
told me the directions. Can’t tell precisely what parts were directed 
to be wet. I loosened the extension two or three times during the 
night. There was something between leg and the board it lay upon ; 
impression there was a pillow under, for a part. Have no recollec- 
tion of a sore on the heel; I saw none. He complained. It was 
inflamed some around the ankle bone. At the time he was removed 
I helped. I did not see any sore upon the heel then. Dr. Davis 
objected, at first, to his being moved. Quite a number of the neigh- 
bors went down. He was anxious to go home. Dr. Davis soon cama 
and objected, and went away, some ten or fifteen rods, to Dr. Lewis’. 
As we had collected, and Mr. Slack was anxious to go, some one 
went over and importuned him. I understood him as consenting, if 
we would get a piece of bark. One was obtained and we put it on. 
Dr. Davis gave as a reason, that he thought the bone had not united 
enough to be moved. Mr. Slack was urgent to be taken home. I 
did not see the measurement at Estabrook’s; did the one after he got 
home. My recollection is, that the well limb was then from half to 
three-quarters of an inch the longest. When I watched at Estabrook’s, 
Mr. Slack took for nourishment cracker in water with a dash of spirits 
in it. About the same, when I watched with him after he got home. 58 
REPORT OF A TRIAL 
Dr. Davis was in attendance,—I saw him frequently at Estabrook’s 
and at Mr. Slack’s own house ; he was said to be the attending phy- 
sician. I first watched after he got home, a week or ten days after. 
Not so well off then as when I had last seen him. Some time in the 
winter, previous to the bringing of this suit, I was making a settle- 
ment with Mr. Slack. In the course of the evening he said that he 
was going to prosecute Dr. Crosby for mismanagement with his limb. 
I asked him if he employed Dr. Crosby. He said he did not. I told 
him I thought it would be rather risky, unless he could be very sure 
he could substantiate the action. He said he meant to sue him, and 
did. When I watched at Estabrook’s, he was relieved by a band 
above the knee. I saw it on, but did not see it put on. Think there 
were straps from the band to the foot-board. 
Cross examination. Watched with him once at Estabrook’s; saw 
him several times after. It was, I think, a week or ten days after he 
was hurt that I watched with him first. He then had a pulley sus- 
pended over the bed. He was restless. He complained of pain,—of 
bones aching,—some at the fracture, but more at the feet and ankles. 
I loosened his gaiters two or three times during the night, and applied 
a wash. Did not see any sores only some inflammation. Looked as 
though there might be sores some day. If there had been sores on 
the ankles I could have seen them. Think the gaiters covered the 
heels ; did not examine them so closely. Think that gaiters had been 
cut out and did not then cover the ankle bones. Think I could see 
the instep. Weight of about a pound over a pulley. I raised it a 
little at a time. Believe there was but one weight; I put my hand 
under it and raised it. Do not know to which end the foot was at- 
tached. Could not say whether the weight was to relieve the foot or 
produce extension. Held the weight but a short time. There was a 
cord and pulley, also, from the ceiling for Mr. Slack to relieve the 
pain by raising the foot. Think one end of the cord was attached to 
his foot or toe. Don’t know as there was any connection between the 
cord that Mr. Slack held and the one on which the weight was hung. 
Think both feet were fastened to the foot-board. Always laced them 
up after they were loosened as before. It did not require great, but 
some force to get it back again to the foot-board. Don’t think I re- 
moved the limb out of its place when I laced the gaiters up. Most of 
the pain was in his well limb. He complained of his feet and ankles 
some. Did not make an examination of the limb after this, while he FOR ALLEGED MAL-PRACTICE. 
59 
was at Estabrook’s. Mrs. Brigham watched with me at Estabrook’s. 
Saw this band above the knee when I watched there, which was the 
first time I saw him. Band was on when I arrived, and remained on 
all night. Think the band was only on one leg. Think the straps that 
attached the gaiters to the foot-board were fastened when I went there, 
and so remained until I loosened them. I might have loosened the 
band. I unlaced the gaiters,—can’t tell whether both, or but one. 
Paul W. Brigham, called. Was about the place of accident. The 
bank was of clay, marl and sand. Was about half a dozen rods from 
it. They were doing a job for the town. Mr. Slack was picking with 
a pick-axe. Mr. Messenger saw it looked dangerous, as if the bank 
would fall. I was going to speak to him and tell him the bank would 
fall; he struck one blow and the bank fell and covered him up. Mr. 
Vesper catched a shovel, and I think two or three of us rolled off a 
lump from his head ; then shovelled off and pawed into the sand till 
we came to his hair, and got his head out so he could breathe, and 
kept at work till he was taken out. We procured a board and laid 
him on it and carried him into Mr. Estabrook’s. I did not watch at 
Estabrook’s. Was there a number of times. At one time while at 
Estabrook’s, Mr. Slack said Dr. Davis had been there, and wanted to 
know what they had been about. That he told him that his brother 
had untied the leg and let it down and it was loose two hours. He 
said the Doctor measured it and said it had shortened,—don’t recollect 
how much. He said the Doctor then got hold of it and pulled it and 
twisted it and got it back. He said “ it wan’t one atom shorter, and 
all he wanted was to hurt me.” Was present at the removal of Mr. 
Slack. Do not know but I might have been at his house and staid 
one night, but had no care of him. After he arrived home, Dr. Davis 
measured his limb, and Mr. Slack asked if it had shortened any, and 
he said the broken limb had a little. The difference was, as I under- 
stood, from half an inch to three quarters. After Mr. Slack got out, 
I was at his house ; he related what had occurred that day in conver- 
sation between him and Dr. Crosby. He said the Doctor had been 
there and brought that eagle-eyed Ransom with him, and thought he 
was going to scare him. Said he did not. Pie said the Doctor threat- 
ened him some about some reports he had thrown out against him, 
and said he wanted him to keep still. He said he supposed he would 
have been glad to have him pay him, but said he, “ I never employed 
him and shall never pay him one cent,” and said, “ if he wanted hi* 
pay he might look to Davis for it, or go without it.” 60 
REPORT OF A TRIAL 
Cross examination. Am afraid Mr. Slack and I are not on friendly- 
terms. Did not watch with him. Called in perhaps half a dozen 
times or more at Estabrook’s. Did not work there much afterwards. 
Think I helped the neighbors finish the job. Taylor Slack was not 
there at time of the talk related. Slack said Taylor untied the band- 
age and left it untied two hours, and was telling how much better he 
slept. Do not know how soon this was after he was hurt. I did not 
testify in this case before. Was here in court, but was not called 
upon. Mr. Slack told me that Dr. Davis came in and wanted to know 
what he had been doing, and he said he told him Taylor had untied 
the leg and let it remain two hours. He said the doctor measured it 
and found the limb had shortened some, and got hold of it and twist- 
ed it, and brought it back. Did not examine his thigh ; did not want 
to see it. Inferred from what was said, the limb had shortened in 
moving. Have related all the conversation with Mr. Slack about Dr. 
Crosby. Have no doubt I have got it correct. He said other things 
which I cannot relate. There were other things which caused me to 
remember this. Something was said that if Crosby did not sue him 
he should sue Crosby ; he might have said he should sue him. He 
said the doctor wanted him to keep still, and not abuse him any more. 
John Cloud, called. Saw Slack the next morning after he was 
hurt, and the Monday and Tuesday after, and watched with him Sat- 
urday night; two and a half miles from my house to Estabrook’s. 
Another man watched with me. He complained first of his heels 
itching, and wanted them scratched. We had to scratch so much 
that the other man said if I scratched the heel he would take care of 
him; so I scratched him. He had on gaiters. [ Witness showed 
how they were laced.] The gaiters were tight; did not unlace them 
that night. Scratched fifteen or twenty minutes and then rested a 
little. He was not easy only while I was scratching. I scratched all 
night; it was as much as I wanted to do. Towards morning one of 
his limbs ached so bad, and he begged so hard, that we took it down. 
It did not touch the bed before he screamed and begged to have it 
put back again, and it was put back. It must have been his well leg. 
A cord was fastened to the gaiter and went up over a pulley which 
was fastened to the bed-post, or chamber floor; can’t tell which. The 
other watcher gave him what he wanted to eat and drink, some por- 
ridge, and, I believe, some cracker‘and sling. 
Cross examination. Scratched both feet. Had to put my finger FOR ALLEGED MAL-PRACTICE. 
61 
between the heel and gaiter. Do not know as I tore off the skin. 
The other watcher did not want to scratch. The foot I let down was 
laced up. I untied the string that went up overhead. Never been a 
witness in this case before. 
Prof. Alonzo Clark, sworn. Am a physician. Commenced the 
practice of surgery in 1831; have not had much to do with it since 
1841. From 1831 to 1841, surgery was a favorite pursuit of mine. 
During a part of that time I was house surgeon to the New York 
Hospital, and surgeon to the Northern Dispensatory. During some 
years I spent in Europe, my attention was divided between medicine 
and surgery. While in Europe had opportunities for observation in 
the hospitals in Paris ; was admitted at any hour of the day. Since 
1841 have practiced medicine, and have lectured in the College of 
Physicians and Surgeons in New York, the Medical School in this 
place, and in the Berkshire Medical Institution at Pittsfield, Mass. I 
heard Dr. Davis’ testimony yesterdaj'- upon character of the fracture, 
and part of Dr. Brown’s. I have never seen Gibson’s splint used, 
and can only give a theoretical opinion. But so far as I can judge, 
from studying the ends for which such an instrument is intended, I 
cannot but say that it seems to me favorable for such a case as Mr. 
Slack’s is described to have been. There are no rules that govern 
the profession in the selection of a splint, except those the physician 
feels governed by, when he comes to the case. It is supposed that 
every surgeon, when called upon, will decide what ends he desires to 
bring about, according to the nature of the fracture, and it is ruleable 
for him to select any splint already in use, or to vary, or form a new 
one for the particular case. If removed too soon from the splint, 
there is danger of shortening of the limb ; and, if at an early period, 
great shortening. In the cases with which I have been familiar, of 
single fractures of the thigh, high up, considered not safe to take 
down short of from fifty to sixty days. In a fracture like that of Mr. 
Slack’s, all I need say about it is, that more time would be required. 
There would be a difference in that respect, also, between fractures 
caused by the falling of a bank of earth, or other causes. When the 
soft parts near the fracture are injured, being deprived of the natural 
supply of blood, healing goes on more slowly. In fractures of the 
thigh, where muscles are strong and more power is necessary to 
overcome them, the surgeon expects to have excoriations, sores and 
ulcers,—that is, until the discovery of adhesive straps, for making ex- 62 
REPORT OF A TRIAL 
tension. In 1845 those straps were not in use. One of the objections 
to the double inclined plane has been, that patient in that splint is at 
liberty, from twisting of body, to move the bones at the point of frac- 
ture. When the welJUeg is loosened, upon Gibson's splint, it gives 
patient a chance to twist in the same way, which causes the bones to 
tend to slip by. I am acquainted with Dr. Gibson, both by reputation 
and personally. His book is of high reputation, and extensively used 
as a text book. It is recommended at this School and the Berkshire 
School as a text book with which the student should be provided. I 
have ridden with Dr. Gibson, in his visits to his patients, and have 
seen several cases of fracture in a day under his treatment. Impres- 
sion, from what I saw, that his private practice was extensive. At 
the time of my acquaintance, he was surgeon of the Blockley Hospi- 
tal. Heard him lecture on surgery at the University in Philadelphia. 
The Hospital with which he was connected was a very large one, 
containing in patients, of all descriptions, about five hundred. 
Q. What is the character of that medical institution ? 
A. It is rather hard to make a Professor in one school acknowl- 
edge that another is superior to his; but I must say that the school 
with which Dr. Gibson is connected, is generally considered as of the 
first standing in this country. 
I am not personally acquainted with Dr. Mussey, only by corres- 
pondence. Well understood that he was formerly Professor at Han- 
over, and he is now Professor of Surgery in the Medical School at 
Cincinnati. Dr. Mussey is a very distinguished man,—one of the 
most so in the country. 
Dr. George Hayward, of Boston, is in the first rank of prominent 
surgeons of the country. 
Cross examination. Think that Dr. Gibson’s splint was first recom- 
mended in his Surgery, in edition of 1841; I have not been ac- 
quainted with it so long. 
Prof. Henry H. Childs, called. Have been a doctor fifty years. 
Have lectured about thirty years, in medical schools, in Maine, Ohio, 
the Berkshire Medical Institution, and the one in this place. My 
practice in surgery, since I have been lecturing, I have relinquished 
somewhat. Before that, had extensive practice in surgical cases. 
Should think Gibson’s splint as well adapted to Mr. Slack’s injury, as 
represented, as any mode of dressing known at that time. Have 
been great improvements made since then. No one apparatus is FOR ALLEGED MAL-PRACTICE. 
63 
adapted to all cases. The surgeon is left to his own discretion, upon 
the circumstances of each case, in the selection of the proper splint. 
As long ago, I think, as 1836, I treated a case of fractured thigh in 
Brunswick, Maine. Placed patient on an inclined plane by elevating 
the foot of the bedstead. This answered very well for a time. We 
afterwards added additional apparatus. Applied bandages above the 
knee and fastened a cord to it for the purpose of relieving the foot. 
Took much pains with it, and got a good cure. It will not answer to 
relax extension, unless at early stage, in order for a perfect cure. 
Patient should be kept in splint from sixty to eighty or ninety days,— 
the length of time will vary in different cases. Think Mr. Slack’s a 
rare case; the contusion was such as to impair the circulation, and 
render it more difficult to get a good limb. In fractures of this kind, 
previous to adhesive straps being known, we always expected excoria- 
tions and ulcers, more or less, about the heels and ankles, when 
extension was kept up a sufficient length of time to ensure a good 
limb. That is a modern and very great improvement. I agree with 
Dr. Clark as to the high standing of Drs. Gibson, Mussey and Hay- 
ward,—there is no doubt about it. 
Cross examination. The case I had in 1836 was a simple fracture, 
pretty high up ; no contusion ; patient was a young man. Applied 
extension at first in the usual way by gaiters. Did not change, per- 
manently, at all. Relieved by band at the knee. Changed and re- 
lieved as he could bear it. Changed for purpose of relieving the 
ankle. If we had not done it, might have had excoriations, and might 
not have been able to keep up extension so as to get a perfect limb. 
Should at all times have the control of it,—proper, in early stages, to 
relax occasionally,—but never so but that you can bring it out to its 
full length. In early stages, some surgeons make no extension at all 
till inflammation has subsided, and union is expected to commence. 
Sometimes early extension relieves the patient. Think bony union 
would commence, in a patient thirty to thirty-five years old, in about 
fifteen days,—in a young person, in nine or ten days. I took a piece 
of soft deer-skin and put around above the knee, and extended cord 
to an object at a point in line with the direction of the thigh. Got a 
perfect leg,—not much troubled with sores. Should look at the whole 
case, and see as to sores. If sores likely to accrue, should change 
point of pressure if we can. 
Re-examination. Almost necessarily suffering at heel and ankle,— 64 
REPORT OF A TRIAL 
heel more particularly,—in such cases. Would require a longer time 
than usual for union to commence and be completed in such a case as 
Mr. Slack’s. The attending physician, the one who has the case, is 
the one to see to the patient, and relieve when necessary. Fault in 
the splint has been obviated by improvements made since. Pressure 
may be changed and patient relieved in Gibson’s splint. Sores pro- 
duced by force, necessary for the proper extension, being applied 
constantly at one place. Should think straight splint would produce 
the same effect as the inclined plane. Think that relieving power 
might be better applied in the double inclined plane than in the straight 
splint. Charles Bell’s work on Surgery is good authority. 
Cross examination of Dr. H. B. Brown, resumed from page 44.— 
When I made examination the limb was somewhat swollen, but not 
very badly. I made no further examination. Dr. Crosby made no 
examination after he came. When Mr. Slack called at my house, I 
felt of his limb, and told him that he had a bad limb. I did not tell 
him that it was cruel to put him into such a splint. Object is to get 
extension, and at same time be most comfortable to the patient. In 
getting extension, power enough must be applied to overcome the 
contraction of the muscles. Think it would have been difficult, in 
this fracture, to get and keep the bones in their proper position in the 
double inclined plane. Think we get more power in the inclined 
plane. On double inclined plane, the ankles are confined to the foot- 
board, but the flexion at the knee prevents the action upon the mus- 
cles being the same as in the single. In the double, we should only 
get power from the ham or knee. I gave my reasons yesterday. I 
think we get more power, applied the whole length, than if at middle. 
I have treated fractures of the thigh. Think the greatest shortening 
was one inch. Had nothing but simple and oblique fractures; no 
recollection of having a case of double fracture. Have had perfect 
recoveries,—half an inch to one inch shortening. Have had patients 
come out with sores and very bad ulcers. It is the duty of attending 
surgeon to watch the feet and place where power is applied, and re- 
lieve patient by change of point of pressure, if possible. Deformity 
in Mr. Slack’s case was, in my opinion, produced in part by the 
bones sliding by, and in part by curvature of the limb. In fractures 
of the neck of the thigh bone, there is almost necessarily a shortening. 
The curvature may have been produced by the bone not having suffi- 
cient solidity, at the time Mr. Slack commenced using it. FOR ALLEGED MAL-PRACTICE. 
65 
Frederick Martin, called. Was present at time Mr. Slack was 
carried home. Heard Dr. Davis say he was not fit to be moved, and 
that he should object to his being moved. Considerable was said. 
Mr. Slack was anxious to go home. Dr. Davis went away to Dr. 
Lewis’s. I went away. When I came back, Dr. Davis was there at 
Estabrook’s, and was going to do his best to get him ready to be car- 
ried home. And he was carried home. I stopped with Mr. Slack 
one night at Estabrook’s. He made some complaint. I did not do 
much. Some other person there that did the most. He complained 
of aching all over,—of his back ; complained of laying there so long. 
Live a mile and a half from Mr. Slack. Have often seen him at 
work since the injury. He works hard,—performs a good deal of 
labor. 
Cross examination. Should not suppose he could labor as well 
now as before the injury; I could not. 
Enoch Gove, called. The first time I saw Mr. Slack after he was 
hurt was five months after his injury; he was in his door-yard with a 
cane and crutch. My impression is, this was the first of October or 
last of September. Boarded with him the last of December or first 
of January after he was hurt. Could not tell what he was engaged 
about at first; but in the course of my being there he was drawing 
wood to the village. Think I boarded there nearly three weeks. He 
loaded part of the wood himself; he went once or twice a day. What 
makes me remember it is that he got throwed off a load of wood and 
the sled ran over his foot. Cannot tell how much it injured him ; 
think he went to the village the next day and had a large sock made; 
think in the course of two or three days he resumed drawing wood. 
Think he uses ardent spirit occasionally ; don’t know as he uses it all 
the time ; don’t know as I ever saw him the worse for liquor. He is 
the most stirring man in the neighborhood. Live in sight of his house; 
he is the first man I see in the morning; and as far as I know, busy 
through the day. 
Cross examination. Live in sight of his house and of his brother’s. 
There might be others up, but he is the first man I generally see. 
Think he rises first, but don’t get a great deal the start of me. Don’t 
know but my neighbor Burnham rises as early as we. Have known 
Mr. Slack 14 or 15 years. Of course he could do more once than 
now, but doubt whether you can find any body who will go forward 
of him now. Have heard him say he could unhitch four acres of 66 
REPORT OF A TRIAL 
grass in a day. My farm was let out and I went to Boston the sum- 
mer he was hurt. Was at Mr. Slack’s in the winter mending sleds. 
Think he drew his wood from the door. Presume he had help in 
loading the wood in the morning, but at noon he loaded it himself. 
Think I am sure it was that winter his foot was run over ; cannot say 
certain. 
Orange Lyman, sworn. Saw Mr. Slack after he was moved home; 
live close to him ; used to be in most every day ; cannot tell how soon 
I was in after he was carried home. Was once in when Dr. Davis was 
there. He said there was a curvature of the limb; he wanted to make 
some adjustment, and requested me to assist him. I took hold of the 
limb just below the knee; did not apply a great deal of force; direc- 
tions were to extend the limb; I pulled as he told me. Cannot tell 
you any more. 
Cross examination. Did not discover any alteration, for I made no 
examination. His ankles were very sore and his heels were quite in- 
flamed ; the Doctor poulticed them; matter run out. Watched with 
him at Estabrook’s a week or ten days after he was hurt; when I 
went in, I inquired about his limb; he said he didn’t mind any thing 
about the limb for his feet and ankles pained him so much worse. He 
didn’t rest much that night; made no examination of his feet or ankles. 
Edson Hutchinson, called. Live a mile from Mr. Estabrook’s; 
watched with Mr. Slack two nights and part of another while he was 
there ; think the first time was eight or ten days after he was hurt. 
Watched with him again in about a week from that time; cannot tell 
when I watched with him the third time, but it was before he was 
moved. The first time he was restless and complained of his ankles 
and particularly of his heels; don’t recollect as I had any directions 
then about relieving the ankles; the second time had directions, I 
think; used friction under the gaiters and administered some wash ; 
don’t remember what it was; think the person who handed it to me 
said there was a little acetate of lead in it. At one time when I 
watched, there was a band at the knee; the gentleman who watched 
with me took charge of that. Mr. Slack took nothing for nourishment 
while I was there but liquid. Think the second time I had directions 
to give him a little sling. Did not take the gaiter off, but shoved it up 
on the ankle ; recollect of seeing holes in it; do not know where. 
Have no recollection of seeing any thing about his foot, could only 
feel it; he wanted me to rub,—I rubbed his heels, and the first time FOR ALLEGED MAL-PRACTICE. 
67 
felt something like the breaking of a blister. Second time, should 
judge from feeling that there was a running sore about as large as 
a half dollar. 
Cross examination. Think I was there three times. It was the 
second time after he was put into the splint that I watched with him. 
Was not present when he was removed. Saw Dr. Crosby there once, 
it was the day Mr. Slack was put in the splint; never saw him there 
at any other time. Saw him ride away from there once, but cannot 
tell how long afterwards. 
Samuel K. Martin, sioorn. Called on Mr. Slack whilst at Esta- 
brook’s and about three weeks after he was hurt. He said he thought 
he was getting along as well as could be expected. He felt in good 
spirits, but complained some. Think I asked him if Dr. Crosby at- 
tended him, think he said Dr. Davis attended him. About a year 
afterwards, (I had been out of the State,) I spoke to him about his 
lameness. He rather threatened Dr. Davis with a suit if he was worth 
any thing. I cannot tell exactly what the talk was ; but he said there 
were sores on his heels, and he was lame, and he talked hard of Dr. 
Davis, and spoke as if he should sue him if he was worth any thing. 
Had some conversation with him about sueing Dr. Davis. He talked 
against Dr. Davis, and spoke as though he would maintain a suit 
against the Doctor if he was worth any thing. 
Cross examination. That is the sum and substance of the conver- 
sation ; would not pretend to word it as he said it. 
Mrs. Louisa Brigham, sworn. Am sister to Lorenzo Slack. Saw 
him first after he was hurt on Sunday afternoon ; went to attend upon 
him in about a week afterwards ; staid there four days, and Tuesday 
of next week went back again. Went and staid with him three or 
four times. When I left, I left him in the care of my sister, Hannah 
Ramsdell; found her there when I went back. Dr. Davis directed 
to keep the leg extended, and not to wet the limb; he directed to 
wash the injured part with vinegar and wormwood, but the feet he did 
not want wet at all. I used to untie the straps and lacings three or 
four times a day; think both the lacings and the strap going to the 
foot-board; did so because he directed it. Wet feet a number of 
times in a day. He would fret and scold. Dr. Crosby came in with 
Dr. Davis once while 1 was there ; think it was in the first week I was 
there. Dr. Davis told Dr. Crosby he could not get his directions fol- 
lowed ; he said his friends and watchers let down the extension. Dr. 68 
REPORT OF A TRIAL 
Crosby replied that if he had been in Dr. Davis’ place, he would have 
left him long ago. This was said in Mr. Slack’s hearing. Dr. Crosby 
said he wouldn’t give any advice in the case. He said so because 
Lorenzo and his friends and watchers acted so. Do not recollect as 
Drs. Davis and Crosby talked the case over by themselves. The ex- 
tension was loosened more or less every day while I was there ; Mr. 
Estabrook used to do it sometimes. Taylor Slack watched one night; 
and in the morning Lorenzo told me he took the legs down, and let 
them be down two hours. Dr. Davis asked Lorenzo the next day 
what he had been about. He said the limb had shrunk one inch or 
more. He told him it must be fixed ; he took hold and pulled it, and 
fixed it. Was present at the time Lorenzo was carried home. Dr. 
Davis told him he should not give his consent to have him carried ; 
and told him he was doing well, and he could not be moved with 
safety. 
Cross examination. Testified at the court before. My brother and 
I are not on so good terms as we ought to be. Think I have testified 
more now than before. I testified then to all they asked me. Some 
questions were not put to me before. Think I testified to the conver- 
sation between Drs. Crosby and Davis as I have related it here. Had 
the care of my brother while there. Dr. Davis came every day. 
Think Dr. Crosby came there the first week I was there. Think I 
went there Monday or Tuesday. The second time I went, staid two 
or three days and went away again. Think four or five days was the 
longest time I staid there at any time. Had the care of him exclu- 
sively during the day. Dr. Davis was there every day, and some- 
times twice a day. Began to unloosen the feet the first day I was 
there; tied them up again ; had no difficulty in tying them back as 
they were before. Dr. Davis used to fret some because I untied them; 
he said I ought not to. Still, I continued to do it. Cannot tell how 
long I kept them untied ; it was just as Lorenzo told me about that; 
never untied them except when he told me to. Did not see Dr. Crosby 
the first day I was there, it was some time during the week. Dr. 
Davis told Dr. Crosby he could not get his directions followed. Think 
Dr. Crosby made no examination ; he went in with Dr. Davis ; pre- 
sume he staid half an hour. No other sick person at the house. Do 
not know as I testified at the last trial any thing about the conversa- 
tion between Drs. Crosby and Davis. I had told Dr. Crosby about 
that conversation before the other trial. Have had no conversation FOR-ALLEGED MAL-PRACTICE. 
69 
with Dr. Crosby about it since other trial. Dr. Crosby told Dr. Davis 
if he had been in his place he would have left Lorenzo long ago, be- 
cause himself, his friends and watchers acted so. The day after 
Taylor watched, Dr. Davis measured the limb and found it had shrunk 
an inch. Was present when my brother was taken away ; went home 
to his house and got there before he did. There were no sores about 
his feet, but don’t know but there might be about his ankles,—they 
were red and inflamed on the sides. Saw him the same day after he 
got home. Think it might have been a week or a fortnight before he 
had any sores. Did not remain there all the time after he got home, 
but was there occasionally. 
Re-examination. Cannot state positively as to the time when sores 
appeared. 
Dixi Crosby, (Deft.,) sworn. The account given by Dr. Brown is 
substantially correct, as to the way I was called. I went in and made 
a general examination of Mr. Slack, and gave as my opinion, that he 
would not probably live the night out, and that there was no necessity 
for doing any thing more till morning. I was told that the limb had 
been set. One inducement, which has not been mentioned, deter- 
mined me to go. Dr. Davis told me it was his brother-in-law that 
was injured, and that it would be a great kindness to him, Dr. Davis, 
if I would go over. I did not then know Mr. Slack. I wrapped up 
and went. I find, by my day-book, that I had not been out for five 
days. I remember distinctly that I was not able to sit up all day, and 
was only temporarily up, when Dr. Brown called upon me. I knew 
of nothing to be done for Mr. Slack, but to keep him in a comfortable 
position, till we ascertained whether he lived. As I was leaving the 
house, Dr. Davis requested me to come over the next day and assist 
in putting Mr. Slack into the splint. I did go over the next morning, 
but it was late, and Dr. Davis remarked, “ we have been waiting for 
you some time.” Every thing seemed ready for putting him into the 
splint. I saw that boards had been placed all the way over the cords 
of the bedstead, to prevent their sagging. Over these boards, which 
extended the whole length of the bedstead, was a covering composed 
of several cotton puffs, or comforters; whether a straw bed or not I 
do not recollect, as this was arranged before I got there. I saw the 
splint before it was brought into the room. Estabrook said he had 
made the inclined board longer than was directed in the book, as he 
thought it would be easier to the patient. I replied to him that I pre- 70 
REPORT OF A TRIAL 
ferred practice to theory, that I knew nothing about the splint at all, 
and he had better make it conform to the book. It was altered to 
conform to the book, as I was informed. The inclined board was 
then covered, the whole width and length, by folding a covering with 
padding, to make it soft, of uniform thickness. There were also per- 
pendicular foot-cushions placed as directed in the book. My recol- 
lection is distinct upon this point, from the fact that the cushions were 
in the way whilst passing the strings through the holes in the foot- 
board. I put the gaiter upon the broken leg, and Dr. Davis upon the 
other. Dr. Davis held the broken leg. Both legs were placed upon 
the inclined board, previously having put some of the same padding 
between the heel and the board. Whilst doing this Dr. Davis became 
tired and wished to be relieved from his stooping position. I spoke 
to Mr. Currier, (with whom I was acquainted,) and in a joking way 
said to him :—“ Come, Mr. Currier, you are a stout man and I think 
you will not tire out.” Dr. Davis then stepped around and put the 
gaiter upon the well leg. After we had got ready to make extension 
I requested Mr. Currier to take hold of the strings of the gaiter and 
pull gently at first. Whilst pulling, the gaiter would wrinkle, and I 
smoothed it. From time to time I directed him to pull more and 
more upon the broken leg, until drawn up to within about one inch of 
the foot-cushion. At that time this leg was not drawn out to the 
same length of the other, in my belief, into about two inches. There 
was so much escape of blood into the flesh, and the thigh and leg so 
swollen, and the muscles were so contracted, it did not seem expe- 
dient to put on force enough then to draw it up to the foot-board. I 
infer that the limb was not drawn to its full length, from two facts:— 
One is, that the leg of a man of Mr. Slack’s size is just about three 
feet long :—the other is, that the foot-cushion was an inch in thickness 
and the foot did not reach it by about one inch. Whilst I was doing 
this, Dr. Davis was fixing the other leg, and how much that was 
pulled I do not know. There was some general conversation as to 
the treatment of the patient. The injured limb had become highly 
colored, and from hip bone half way to the knee was black and blue. 
The skin was a good deal scratched and torn. They pointed out to 
me where they thought the point of the fractured bone was. I did 
not examine by feeling of it. It was so swollen I could have ascer- 
tained nothing, had I attempted a closer examination. The skin was 
so full as to shine, and was pressed out to its utmost extent. I left FOR ALLEGED MAL-PRACTICE. 
71 
soon after completing the dressing. Nothing was said to me on Sun- 
day about coming again, that I heard. Mr. Slack did not employ 
me afterwards to take care of him. I am willing to adopt Dr. Con- 
verse’s account of our meeting at the bridge. By which of us the 
conversation was introduced, I cannot say. I inferred from what was 
said, that Dr. Converse would like to see Mr. Slack. When we met 
I was riding, he was walking. After a little conversation I said : “ If 
you wish to see Mr. Slack, I will go with you.” Dr. Converse has 
given a correct account of what took place in the house. I had no 
purpose to go in, if I had not met Dr. Converse. I do not remember 
that there was a word spoken between us, either there or before, as to 
the nature of the fracture. I knew nothing as to it, but took it wholly 
from the account given me by Drs. Davis and Brown. Owing to the 
condition it was in from the time when I first saw it, it was impossible 
for me to know any thing about the nature of the fracture. When I 
left on Sunday, I got no impression, from any thing that was said or 
done, that I was expected to have any thing further to do with the 
case. At some time, 1 do not know when, I was coming down the 
river north of Mr. Estabrook’s, and overtook Dr. Davis. He asked if 
I was going to stop before I got to Estabrook’s. I told him I was not. 
He asked me to call and see Mr. Slack. When we got to Mr. Esta- 
brook’s we went in. He did not tell me for what purpose he wished 
me to call, except that he wanted me to see Mr. Slack. Dr. Davis 
told me, in Mr. Slack’s presence, how his directions were disregarded 
and the dressings interfered with. Who else were present I cannot 
tell. I did not then know any of Mr. Slack’s brothers or sisters. 
When Dr. Davis had told me how the watchers and attendants con- 
ducted, he asked my advice about it. I told him I could give him no 
advice as to how he should conduct with his nurses and watchers. 
I said further, (in substance,) that my way was, if my directions were 
not followed and the dressings were interfered with, as represented in 
Mr. Slack’s case, to leave the patient. We have to say, when a pa- 
tient is confined in any kind of splint, and they take the management 
into their own hands when the physician is absent, and if they do not 
submit I am in the habit of saying to patients, “we cannot practice 
together, and if you cannot follow the directions, I must leave — 
“ that we cannot manage the case together, and if you undertake to 
manage it, I will take myself out of the way.” That is the idea I 
meant to convey. I think my attention was not called to the limb ; 72 
REPORT OF A TRIAL 
Dr. Davis said it was doing well; he asked no advice in regard to 
treating it, but only in regard to the management of the watchers. 
Since hearing the testimony of Mrs. Blaisdell I have procured a copy 
of my account, to see if I was at her house at the time specified. I 
recollect being at a Mr. Blaisdell’s house, who had an abdominal ab- 
scess. I have no recollection of having any conversation there 
about any body’s case but Mr. Blaisdell’s. When Drs. Brown and 
Davis called upon me and described the fracture, I gave just such an 
opinion as any professional man would, upon a case represented by 
another. I concurred with them upon the case they stated. My 
opinion then, as they represented Mr. Slack’s case to me, was in favor 
of the splint used, and is still the same. 
Cross examination. My impression was that the injury was so 
serious that Mr. Slack would not survive ; I think I said this to Mr. 
Currier. I had heard something of his condition the next day after 
the injury, before I went to Mr. Estabrook’s house. He had revived 
so on Sunday morning as to be conscious of existence. My impres- 
sion was, from his general appearance, that he was not in a situation 
to exercise reasoning powers. The night before, I think, he was not 
conscious of existence. Had no conversation with Mr. Slack. Can- 
not doubt, from the acquaintance between Dr. Davis and myself, but 
that he mentioned Mr. Slack to me every time he saw me. I pre- 
sume I may have enquired about him ; I hope I did, at any rate, 
although I recollect no instance. Think it was on Monday, the day 
after he was put into the splint, when I called with Dr. Converse. I 
did not do any thing then; do not know that Dr. Converse did. Do 
not remember who else was there. Did not know that any physician 
was in attendance. I got there on Sunday about ten, and think I left 
about the middle of the afternoon. Before I left, on Sunday, have 
impression that he had consciousness sufficient to know where he 
was; but not sufficient to take any care for himself, unless to ask for 
water, or the like. My impression is that I next saw him with Dr. 
Davis, but cannot say when it was. Either the next day or day but 
one after I called with Dr. Converse, I was riding by Mr. Estabrook’s 
with my wife, and I said, “ here is where the man lies who was 
crushed by the falling of a bank of earth.” She requested to see him 
and I called with her. Think this was two or three days after he was 
put in the splint. Do not recollect of seeing him again while at Es- 
tabrook’s Do not know any thing about his being removed. Do not FOR ALLEGED MAL-PRACTICE. 
73 
remember as Dr. Davis spoke to me about it. Do not know whom I 
left with him on Sunday. Do not know whether Dr. Davis had gone 
away or was there. It would be my impression, from the natural 
habits of the two men, that I left before Dr. Davis did. So far as it 
regards treatment of ordinary cases of fracture and dislocations of 
common kinds, my belief is that Dr. Davis would do all the business 
in families within his limits; but that he would not be sought for as a 
surgeon beyond that. If Dr. Davis will trouble himself to think, and 
if he will excuse me for the mode of expression, I had as lief have 
his opinion upon a question of physic, or surgery, as of any living 
man among the practitioners in my neighborhood,—or among com- 
mon practitioners. I have consulted him for myself. I think I have 
been at Blaisdell’s with Dr. Davis more than once. Have no recol- 
lection of talking there about Mr. Slack, or any one else. My im- 
pression is that our attention would be closely directed to Mr. Blais- 
dell. His case was a rare one and required a very delicate opera- 
tion, and I think we should not have been likely to talk about any 
thing else. I knew nothing about this splint, when it was adopted. 
I did not say, that I selected this splint from a book in my library. 
Re-examination. I produced the books, but believe that they 
looked them over, and I not. I took the description from Drs. Davis 
and Brown, and made no examination, and gave as a reason, that it 
was not possible for me to make any examination in the situation that 
the patient then was. 
(Defendant here rests.) 74 
REPORT OF A TRIAL 
PLAINTIFF’S REBUTTING TESTIMONY. 
[The Judge’s minutes of Mrs. Louisa Brigham’s testimony, given on the pre- 
vious trial, were read to the jury.] 
Jedediah T. Brigham, sworn. Was called about a week after Slack 
was hurt to watch with him ; watched again in about four days, and 
once after that,—three times in all. Didn’t see him at Estabrook’s 
excepting when I watched. The first time he was restless, and kept 
me and the one who watched with me very busy rubbing his ankles 
and trying every means to keep him quiet. The second time he was 
more nervous, and got no rest at all; we gave him McMunn’s Elixir, 
but it didn’t seem to operate ; he begged several times during the 
night to have his limbs let down; towards morning he became so rest- 
less, and begged so hard to have the strings loosened, that I did so. 
In loosening the left leg, I found the instep black and the skin slipped. 
It looked so bad, the man who watched with me proposed taking off 
the gaiter; he took hold of the limb and held it in its place ; I un- 
laced the gaiter and took it off, and found the heel also black ; it slip- 
ped and from it ran watery matter. A silk handkerchief was lying 
on the bed, and we doubled it up and with it tied the foot to the foot- 
board. I left it in this manner in the morning; the gaiter was made 
of white sheepskin and canvas or tow cloth, two thicknesses—one 
cloth, the other leather; don’t know but there might be a lining within 
the gaiter. I noticed in moving the gaiter it wrinkled and the strings 
buried in the foot. This was the second time I watched with him. 
The third time he was not so nervous and excited as before, but the 
ankles and feet were sore, suppuration had taken place. Did not see 
him again till he was moved home. Was not present when he was 
moved home. Saw him after he was moved; cannot be definite as to 
the time. Saw him Sabbath evening; went there with Dr. Converse. 
He seemed very weak and feeble, and if I recollect right there were 
deep ulcers on both heels and on each side of the ankles of the broken 
limb and one on the instep ; the other foot was not quite so bad ; think 
there was a sore on but one side. Do not think I saw him again until FOR ALLEGED MAL-PRACTICE. 
75 
he was able to be out. Some two years or more after I saw his feet; 
he was in a shop in the village, and he showed them ; there were 
running sores on them then. 
Cross examination. The leather the gaiter was made of was a 
piece of sheepskin, such as I used for lining boots. I offered the man 
who came after it some deerskin. The piece he got was the lining 
of a boot, it was pretty stiff. I left the gaiters off from half past three 
until morning, when I left. His foot was kept in place by a hand- 
kerchief, the end of which was tied round the foot-board. 
Rufus Benson, called. In 1845, I lived in Norwich. Sometime 
in the afternoon of the day Slack was injured I was informed of it. 1 
was at the village. I went down the river to see him ; went into the 
house, saw him. There was but little done at that time. Was there 
the next morning and some more than half of the day. Was there 
when he was put into the splint. Don’t know as I can tell who had 
the direction. Drs. Crosby and Davis were there, and one or two 
more doctors. A short time afterwards,—(Burnham says it was the 
next Tuesday,)—Mr. Burnham and I watched with Mr. Slack. He 
complained considerably of his feet and ankles. He said they were 
drawn down too tight and wanted them loosened. We raised his heels 
up a little from the board ; didn’t loosen him otherways; cannot tell 
how soon, but pretty soon I watched with him again. Complained 
about the same. The second night he complained so much about 
loosening his feet that I spoke to Dr. Davis about it; he said it would 
not do, but I think he said we might loosen the well leg a little; saw 
his heels; think there was a sore on the instep ; no sore on his heel. 
Called in the morning he was moved, did not stop but a few minutes, 
and did not assist in removing him; I was on my way to Springfield ; 
came back the next day, and the next morning went in to see him. 
Saw his heels and ankles were sore; cannot tell when, but one time 
the cap of the heel was gone. Both heels appeared to be running. 
Lorenzo Slack, (Plff.,) sworn. The first recollection I had after 
the injury was on Sunday, in the fore part of the day. Remember of 
a number of men being there and fixing me up in some kind of a way. 
Do not remember every one ; do not know as I realized at the time 
that I was put in the splint. Remember of seeing Drs. Crosby and 
Davis there. After I was placed on something, I remember of asking 
Dr. Crosby how long I had got to lay there; he stated some number 
of days, cannot say how many, but had it in my mind that it was 35 76 
REPORT OF A TRIAL 
or 40 days. When he gave me the answer, I spoke and said, “ May 
I begin to count to-day?” He said, “ Yes,” then he left. Some of 
them laughed. That night my wife watched with me. Cannot say 
but I was wandering a considerable of the time ; thought there were 
trees across me, and would ask them a lot of odd questions, and they 
would laugh at me and tell me I didn’t know any thing. Didn’t see 
Dr. Crosby again till Tuesday or Wednesday; Crosby and Converse 
came in and went to the bed where I was and looked at me, and Dr. 
Crosby asked Dr. Converse what he thought of the splint. If I re- 
member rightly, Dr. Converse replied that he did not know but it 
might do if the patient could stand it. Think the fracture was pointed 
out: think it was called a simple oblique fracture. Always supposed 
that was it. Presume I began to complain as soon as Monday. I felt 
as though I could not live in that position, and begged of them to lib- 
erate me some way, and asked them why I could not have the use of 
the well leg. Dr. Davis told me Dr. Crosby said it must not be al- 
tered. Did not see Dr. Crosby again until about a week after he and 
Dr. Converse were there. He was in then, and I told him then my 
suffering was greater than I could bear, and I asked if there was not 
some way that I could be liberated. He turned up his head and said 
that I made a great fuss for a man with nothing but a stub in his toe. 
I told him I was in great pain in my heels, ankles and back, and I 
think at that time they got some cotton batting and put under my 
heels, and I think tucked some under my back. My pain and trouble 
grew worse and worse, and I should think it was as late as three weeks 
before I saw Dr. Crosby again. About that time there was an extreme 
pain in my well leg. I think the night before my brother George and 
Daniel Currier watched with me. All the way they could relieve me 
was to heat cloths and a freestone and hold them upon the thigh of 
the well leg. They continued this through the night. All the trouble 
was in the well leg. Think Dr. Davis came the next morning, and I 
asked him why I could not have that leg taken down. He said it 
would not do, for Dr. Crosby said it must not be moved. Think the 
same or the next day Drs. Davis and Crosby came in, and I think 
they took the leg down while Dr. Crosby was there. As soon as they 
took it off it seemed to put me in still worse pain, and I think I asked 
them to put it back. I had no power over it myself. They put it 
back. It had been up, I think, twenty days. Afterwards, up part of 
the time and down a part. After that, pain was principally in feet FOR ALLEGED MAL-PRACTICE. 
77 
and ankles. Cannot say I ever realized any pain about the fracture 
while at Estabrook’s. I never saw the sores on my heels while there, 
could only feel them. After they got the well leg off the splint I 
could see the ankle bone. Before I was moved there was a large sore 
on instep of left foot. When I got home they were awful things,— 
running sores on both heels, ankles and insteps. The skin did not 
come off till after I moved home. The night after I was moved home 
my brother David watched, and he took the thick skin off my heel, 
and the first time 1 saw the heel was in a looking-glass that was held 
for me. I would lay my feet over the bed and there would drop off 
half a pint of fluid every night. I thought I was nearly gone the day 
I went home, and I thought others thought so too. I felt as well the 
day I went home as I do now; 1 felt cheerful to think I could go 
home. I gradually improved; my sores grew bigger until June ; don’t 
think I suffered so much pain, though my sores grew worse, as I did 
at Estabrook’s. The winter after the injury I did not do scarcely any 
thing but ride around and see to chores. I had a span of horses, and 
by having the wood loaded for me I could get on the load and ride to 
the plain. I drawed wood in this way the second winter after I was 
hurt. I think two years ago last winter I was thrown off the sled and 
it run over the toe of my right foot. I got a sock made and wore it I 
think two days. This was not the next winter after I was hurt. Can- 
not say as I have been free from pain since my injury. Have not 
rested that heel on a feather bed since ; cannot bear its weight upon 
it. I do considerable work now, but I do it in misery ; don’t think I 
can do more than one-third the work I could before I was injured. 
The facts that led to suppose that Dr. Crosby had the care of me, 
were, that Sunday he told me the number of days I must lay on the 
splint, and then as he went out of the door I spoke to him and said, 
“ you will call and see me again when you are over ? ” or, “ when 
are you coming over again, doctor? ” or something like that, “to see 
me ? ” He gave me an answer that he would be over again ; he said 
he would be over very soon ; cannot recollect the words he used; but 
supposed he was coming again. Then when he came in with Dr. 
Converse, I showed him my leg, and they talked about it, and coming 
with Davis and what Davis said, and all, I supposed he was the at- 
tending physician. I never had any such conversation as related by 
Paul W. Brigham. Never told Mr. Spear or any other man that I did 
not employ Dr. Crosby. I never told Freeman that I did not employ 78 
REPORT OF A TRIAL 
Dr. Crosby. I recollect the conversation I had with Mr. Freeman. 
Should think it was in October after I was about; I was at the Plain 
at an auction, was standing close to Morton Lewis when Mr. Freeman 
presented a bill from Dr. Crosby for doctoring me; likely enough 1 
started up pretty quick and said to him, “I shan’t pay any bill to Dr. 
Crosby till I pay it on the tail end of an execution. He ought to pay 
me for making me a cripple, and tell him I stay up where he and 
General Ransom saw me.” Suppose the injured limb is strong three 
inches shorter than the other; am very much incommoded in travel- 
ling. The hip joint is good enough. The ankle seems somewhat 
stiff and troubles me some. 
Cross examination. I remember, sometime, Spear and wife being 
at my house. Think Mr. Burnham was there the same night. Never 
said in the presence of Mr. Spear and wife that I didn’t employ Dr. 
Crosby. Remember talking about Ransom and the doctor coming to 
my house. Perhaps I said something about Dr. Crosby’s sending a 
bill to collect by Mr. Freeman. I remember of talking about it either 
before or after the suit. Never said in presence of Mr. Spear any 
thing about not employing Dr. Crosby. 
DEFENDANT’S REBUTTING TESTIMONY. 
Dr. Crosby, (defendant,) re-called. I have no recollection of 
having any conversation with Mr. Slack at Estabrook’s about going 
there again. Think I should have gone if requested, for it is my 
habit and business to attend patients when asked so to do. 
Note.—During the trial a reporter was employed, who furnished a hasty 
report of the case for the Spirit of the Age. This report has been revised and 
corrected by notes taken by counsel on the trial, and, so far as I know and 
believe, is a true and faithful copy. D. C. FOR ALLEGED MAL-PRACTICE. 
79 
CHARGE OF JUDGE PIERPOINT. 
In the action of Lorenzo Slack against Dixi Crosby, for mal-prac- 
tice,the plaintiff alleges in the declaration, that defendant on the 12th 
of April 1845, was employed by him, who was then suffering from a 
fracture of the thigh bone, to set, dress and take care of the injury; 
and that defendant undertook to adjust this fracture and take care of 
it. And in the care and management of that fracture the plaintiff 
alleges that the defendant managed it so carelessly and negligently 
that he has suffered damage. This action is an action on the case. 
It is not an action on a contract, although the declaration alleges what 
the law would make a contract so far as to permit the defendant to 
recover for his services; still the action is not for a breach of 
this contract, it is not for the defendant’s not doing what he agreed to 
do,but for doing what he did agree to do in such a careless, unskilful and 
negligent manner as to injure the plaintiff. The plaintiff introduced, 
in the first place, the testimony of several witnesses, testifying, in 
substance, that he, on the 12th day of April, 1845, was engaged in 
excavating a bank of earth, which fell upon him; that several per- 
sons in sight, seeing the situation in which he was placed, uncovered 
him and removed him from the bank; that he was much injured, and 
supposed to be dead, and taken to the house of Mr. Estabrook; that 
a messenger was despatched to Dr. Crosby, who lived about half a 
mile from the place where this accident occurred ; that the messen- 
ger called on Dr. Crosby, stated to him what had happened, and 
requested him to go and see the plaintiff; the defendant said he was 
unwell and unable to go, but observed to the messenger that Dr. 
Brown was there and would go,—the messenger says he did not 
recollect whether he saw Dr. Brown or not, but Dr. Brown says he 
asked him if he would go, and he told him he would,—Dr. Brown 
went to the house of Mr. Estabrook. The plaintiff was then lying 80 
REPORT OF A TRIAL 
on tbo floor. Dr. Brown made preparations for placing him on a bed, 
when Dr. Davis went in. They then laid the plaintiff on the bed. 
Dr. Brown states that in moving him he placed his hands under the 
fracture, and from indications, he concluded the bone was crushed, 
but after he was placed on the bed he examined the fracture and sat- 
isfied himself that the bone was not crushed, but that there was an 
oblique fracture of the thigh bone very near the upper joint, and 
another fracture near the neck of the bone. Dr. Davis examined it 
also, and satisfied himself it was a double fracture. Both state that 
the parts of the thigh were very much lacerated; that the point of 
the fractured bone protruded nearly to the skin ; that the blood 
had collected, causing a considerable of a tumor at that point; and 
that upon consultation together, having no dressings to apply to it, 
they concluded to consult with the defendant. They went over and 
stated to him the case, and inquired of him whether he had any suit- 
able dressings. He said he had not. The question then rose between 
the three, what dressing should be applied ? Dr. Brown says the 
splint with which he had been acquainted was the straight or horizon- 
tal splint. He says that it was concluded at once that that splint 
could not be applied to this patient. He gave as a reason that the 
splint would come in contact with the tumor. Then the question was 
as to the double inclined plane. He states the reason that in his 
opinion, and the opinion expressed at the time by the defendant, to 
make the extension, short splints and bandages must be used to con- 
fine the thigh to the splint, and that, of course, would preclude all 
appliances to the cure of the laceration of the thigh. And another 
reason he assigns is, that the fractured bone which was attached to 
the hip joint was so short it would be difficult to keep the patient from 
moving it if he had the use of the other limb. The defendant took 
down his book, and they examined them, and finally concluded to 
use Gibson’s splint; they all thought this was the best. 
One thing, gentlemen of the jury, of which the plaintiff complains 
is, that the defendant in the application of this splint did not bring to 
bear upon this case that degree of skill, judgment and prudence the 
law requires when placed in the circumstances in which he was 
placed. This question may be the first which may be presented to 
your consideration : What degree of skill was required of the de- 
fendant ? What the law requires of any man is that he should use 
ordinary care in the application of his skill in the subject matter of FOR ALLEGED MAL-PRACTICE. 
81 
business in which he is engaged. The highest degree of skill is not 
required, though a higher degree of skill is required of the defendant 
than of a graduate of a medical college. He has no business to com- 
mence practice until he has acquired that ordinary degree of skill, 
and he must use ordinary care as well as the defendant. If the high- 
est degree of skill was required, no man would be safe in the practice 
of surgery ; for we all know in relation to surgery that the greatest 
part of the skill required is gained by practice. And with all surgeons 
the more practice they have had the more skill they have, because 
there are no two cases exactly alike. Was there any thing unskilful 
in adopting this splint as the one best calculated to effect a cure in 
this case ? The physician or surgeon has no business to experiment 
upon his patient merely for the sake of making experiments ; but the 
question arises in this case, what you would require of the surgeon 
under the circumstances. The splints then in use, as Dr. Brown then 
thought, would not answer the purpose ; they then sought information 
from an approved author, to see what splint might be applicable to 
this particular case. They found and approved of Gibson’s splint. 
What would you have them done if they had found no splint ? They 
must either let the patient lie as he was, or produce some extension of 
the limb. If that instrument in the estimation of every man of ordi- 
nary skill was calculated to produce the ends desired, should you say 
that the surgeon should not use it, and be liable for mal-practice sim- 
ply because it was new ? But if he makes use of a strange instrument 
that never had been used, or was not calculated to produce the results 
desired, that would be different. The question would be, what under 
the circumstances would this man do ? They adopted this splint and 
got one made, and Dr. Davis and Dr. Brown persuaded the defendant 
to go and look at the patient. Dr. Davis carried the book over and 
got the splint made, and the defendant states when he got ready to 
leave, his impression was he expressed an opinion that Mr. Slack 
would not live through the night, and Dr. Davis, as he said, asked 
him if he would not come over and assist in putting the plaintiff in 
the splint. He told him he would, and the next day went over. Af- 
ter having assisted in placing the plaintiff in the splint, the defendant 
left, and, as is contended on the part of the defendant, that when he 
left at that time, his connection with that patient ceased, and he was 
under no obligation from that time to have any care of the patient, 
and in fact that he did not. The plaintiff states that his recollection 82 
REPORT OF A TRIAL 
of what took place during that time was indistinct, but he recollects 
that after he w'as put in the splint he asked the defendant how long 
he should have to remain there ; he told him, but he did not recollect 
the number of days, and that as the defendant left he asked him to 
call again, and he said he would. The defendant said the plaintiff 
was apparently unconscious, part of the time, of what was passing 
around him. 
It will not be contended that the plaintiff had anything to do with 
the procuration of the defendant; if he went both times by the re- 
quest of Dr. Davis, and if he went merely for the purpose of acting 
with Dr. Davis, and if he left with no direction on his part to call 
again, his connection with the patient would cease and he be under no 
obligation to return. But, in point of fact, although he had agreed on 
that occasion to continue his attendance, if he had abandoned the 
patient, he could be liable only on his contract, he could not be liable 
to mismanagement of the patient. And if the plaintiff had relied upon 
that agreement it must not answer for him to suffer himself to lie 
there and suffer injury for the want of proper medical attendance ; it 
would be his duty to call on some other surgeon, if the defendant did 
not go. But unless he understood at the time, that he was to have 
the care of the patient, there, gentlemen of the jury, his obligations 
would cease, and he w’ould not be liable for mal-practice unless he 
did something for the patient or performed what he did do in some 
negligent manner. Then the question is, if you find this relation 
ceased on that Sunday morning, then the defendant would not be 
liable for treatment afterwards by Dr. Davis or any one else. The 
defendant is responsible for his own acts and negligence, and for that 
alone. Then the question arises, and it is for your determination, 
whether the defendant was guilty of acting unskilfully, negligently 
and carelessly in the management of this fracture, in the application 
of this splint. And it is for you to determine whether there was 
any want of skill or judgment on his part. And if he used this skill, 
and in his best judgment thought the appliance was the best under 
the circumstances, it is all we shall require of him. As I said before, 
the surgeon must not try experiments for the sake of experiment, but 
if he makes use of means which in his judgment are calculated to 
meet the ends desired, it is saying too much to say he is liable for 
the consequences, even though they might be disastrous. If you are 
satisfied that he used his best judgment in the use of the instrument, FOR ALLEGED MAL-PRACTICE. 
83 
and if his connection with the patient ceased on that Sunday, then 
there is no ground to say he was liable for any consequences of this 
injury. It is no matter whether the plaintiff was in a conscious situa- 
tion at the time, if any one else in his behalf had called on the de- 
fendant to perform his services, he must bring to that service the 
ordinary skill and care ; and if he is wanting in that he is liable for 
the consequences the same as a man in any other business, who does 
his work unskilfully. But it is contended on the part of the plaintiff 
that the defendant did treat the patient, and did manage the case, 
and did it in a careless manner. You have heard the witnesses on 
both sides. 
The defendant testifies that he did not call there afterwards to have 
any care at all, was never requested by plaintiff to do anything for 
him afterwards, and though the plaintiff says he believes the defend- 
ant directed about the case, still he does not tell us he had any care 
or gave any directions, or that he sent to him for relief. Dr. Davis 
says he directed. Unless this patient was under the care of Dr. 
Crosby, he would not be responsible for the acts of Dr. Davis; he is 
only responsible for what he does himself. It is contended on the 
part of the plaintiff that the defendant made some five or six visits 
after the first Sunday. You have heard of the circumstances under 
which these visits were made; of the conversation with Dr. Converse 
on Monday or Tuesday after the plaintiff was placed in the splint, 
and that he and the defendant went in. He states what took place 
on that day. Also the defendant says he called once with his wife, 
and states the circumstances by which he did call. Dr. Davis says 
on one occasion he requested the defendant to go in with him. The 
reason he assigns for it was that the plaintiff was uneasy and restless. 
Whether this was the same occasion, related by Mrs. Brigham 
Dr. Davis, is for you to say. The defendant says it was the same 
occasion, the plaintiff says that it was not. Dr. Davis says that it was 
two or three weeks after the injury. The defendant does not recol- 
lect the time. Mrs. Brigham says the time Drs. Davis and Crosby 
called there was the second week after the Sunday the plaintiff was 
placed on the splint. You must determine the nature of the acts of 
the parties as well as what they said. If the defendant was to have 
the care of this patient, of course he would not deny it; and if the 
plaintiff supposed the defendant had any obligation to him, it is for 
you to see if he would remain passive without the attendance of the 84 
REPORT OF A TRIAL 
defendant. Dr. Davis was there sometimes three times a day, direct- 
ing about the management of the apparatus and the treatment of the 
patient. Then the question arises, whether there was any fault on 
either party. If you find from the evidence that the defendant was 
in actual attendance to this patient, and had the control, direction and 
management of him, then the question arises, whether, through his 
mismanagement the injury has accrued of which the plaintiff com- 
plains. He complains of a splint, made of a certain construction. 
If he could not safely be placed in the double inclined plane or 
straight splint, the question arises, what splint should he be placed in, 
and whether there was anything in this splint that did, in point of fact, 
injure the plaintiff? If sores were produced, it is for you to determine 
what there was in the construction of this splint calculated to produce 
them, more than in the two other splints. The inventor, Dr. Gibson, 
in his deposition gives the reason for preferring this splint in particu- 
lar cases ; and one reason is the very thing of which the plaintiff 
complains, and that is the [elevation of the feet, that the pain would 
be less in consequence of the elevation. All we know of that is 
what physicians tell us. And we do not know as surgeons have ever 
discovered a position in which a limb can be placed and kept without 
making it very painful; if they could they would deserve the thanks 
of the world. They tell us a great deal of pain must be endured, by 
the patient; that if he expects to have a good limb it must be kept 
extended until the bone becomes firmly united; that this is absolutely 
necessary for making a perfect cure. It is apparent that this cannot 
be done without great pain, for surgeons tell us the patient should re- 
main in the splint from 60 to 70 days. And Dr. Childs tells you that 
the wetting of the heel will so affect, that unless great pains are taken, 
sores will appear on the extremities. It is for you to say how much 
difference there would be in the force which it is necessary to apply, 
between this splint and the others. The question is, should the sur- 
geon on this occasion have used this splint. The defendant contends 
that the soreness has been increased very much by the continual wet- 
ting of the parts, and the surgeons, who were asked the question, 
said the tenderness would be increased thereby. Dr. Davis directed 
that these parts must not be wet all. The defendant contends that up 
to the time the plaintiff was removed, this limb was in a good condi- 
tion, and that it was as free from sores as could be expected, under 
all circumstances. If you are not satisfied the defendant had the care FOR ALLEGED MAL-PRACTICE. 
85 
of this patient after he left him on Sunday, after he was put in the 
splint, then you are not to make him responsible for treatment after- 
wards, and if you are satisfied that in the discharge of the duty that 
devolved upon him, at the time he was there on Saturday and Sunday, 
in the treatment of this patient, he did not exercise that ordinary skill, 
care and prudence, then you will make him liable to all damages re- 
sulting in consequence of that want of skill. But if the damage has 
not resulted from that want of skill, he is not liable for it; he should 
not be made liable for it unless that injury has been the result of his 
carelessness or negligence; and if he exereised the ordinary care 
and skill in the exercise of his best judgment, in good faith, in making 
the application to the plaintiff on that occasion, the plaintiff has no 
cause of action against him. And if the plaintiff has suffered injury 
from some other cause, no matter whether it resulted from the original 
injury sustained, the defendant is not responsible. 
The case was committed to the jury at 8 o’clock, P. M.,—they 
separated at 9 o’clock, P. M.,—and the next morning returned their 
verdict for the defendant.