CONTRERAS ET AL v. GUMMIG (1942)

The respondent, in his petition for rehearing, asserts that “the evidence is, however, precisely to the effect that no such additional bleeding occurred” after the last packing of Contreras' nostrils, and contends that, in the absence of such evidence, any negligence of which respondent may have been guilty in making that packing is not shown to have been the proximate cause of Contreras' death. In this case, however, there was sufficient evidence of negligence resulting in bleeding, irrespective of the last packing, to require a submission of the case to the jury. In support of his statement that “no such additional bleeding occurred,” respondent refers to testimony of Contreras' cellmate as follows:

“Q. Did you see any blood on him or around him at that time [referring to the time after the last packing when the cellmate awoke and Contreras was dead]? A. No.” (Tr. p. 35.)

It is true that he did so testify, but it is also true that prior thereto he testified as follows:

“A. I know that they took him to the hospital down below, and I went to sleep. I don't remember when they returned him.

“Q. Did you wake up and see Contreras afterward? A. Yes.” (Tr. p. 28.)

“Q. By Mr. Monteleone: Now, did you observe his appearance at that time [[[[[[[[[[[[referring to the time after he was taken to the hospital] when you woke up? A. Yes.

“Q. Describe what his appearance was as you observed it? A. He was standing up like this (indicating), and he had very much blood on his face, along here (indicating).

“Q. You say his hand was this way (indicating), did he have anything––were his hands tied? A. Yes.

“Q. Did you see what it was tied with? A. With manacles.” (Tr. pp. 29, 30.)

Contreras was taken to the hospital from jail only one time and that was when the last packing was made. The manacles were on Contreras only after he returned to jail after the last packing. A jailer testified that the handcuffs were put on Contreras after he was “brought back up” from the hospital. (Tr. p. 90.) It therefore appears that after the last packing there was testimony that Contreras “had very much blood on his face.” The reference by respondent to testimony that the cellmate did not see any blood on Contreras after the last packing, and the reference herein to the further testimony that he did see blood on Contreras' face after the last packing are, obviously, inconsistent. The court is required, however, to adopt the view most favorable to plaintiffs, which is that blood was on Contreras' face after the last packing. Of course, in a case like this, where the cause of death is definitely fixed as being excessive bleeding, negligence of the attending physician which does not result in bleeding cannot be regarded as a proximate cause of death and proof that it did so result is part of the burden cast on plaintiff. The jury might, however, have resolved the conflict in the evidence above quoted favorably to plaintiff and found that there was bleeding after the last packing.

The petition for rehearing is denied.

PER CURIAM.

SCHAUER, P. J., PARKER WOOD, J., and SHAW, Justice pro tem., concur.