Valentine

This is another appeal in which the principal ground urged is that the court gave a res ipsa loquitur instruction that took from the jury the question as to whether the essential elements upon which the applicability of the doctrine is predicated had been proved by the plaintiffs. Other errors in instructing the jury are also claimed. We have concluded that there was error, but that under the peculiar facts of the case the error was not so prejudicial as to require a reversal.

I. Res Ipsa Loquitur.

The action is for medical malpractice, and is based upon the fact that the minor plaintiff, who was at the time but 2 days old, lost his glans penis as the result of a circumcision. No claim is made that the evidence does not support the verdict, nor is it claimed that the case is not one in which a proper res ipsa loquitur instruction should have been given. The objection is solely to the form in which the instruction was east.

At plaintiffs ’ request, the court gave this instruction:

As “defensive” instructions, proposed only if the court decided to instruct on res ipsa loquitur, the following instructions, suggested by appellants, were given:

Basically, appellants’ position is…