Butler ex rel. Jones v. Lupton

Supreme Court of North Carolina

Butler ex rel. Jones v. Lupton

6 S.E.2d 523, 216 N.C. 653, 1940 N.C. LEXIS 357

DecidedJanuary 3, 1940

StatusPublished

This text of 6 S.E.2d 523 (Butler ex rel. Jones v. Lupton) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Butler ex rel. Jones v. Lupton, 6 S.E.2d 523, 216 N.C. 653, 1940 N.C. LEXIS 357 (N.C. 1940).

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Opinion

Seawell, J.

Since this case comes here upon the propriety of a judgment as of nonsuit, we have not thought it necessary to extend the record by recounting defendant’s evidence, although the latter is not free from inferences favorable to the plaintiff. Ford v. R. R., 209 N. C., 108, 182 S. E., 717; Davidson v. Telegraph Co., 207 N. C., 790, 178 S. E., 603. It is a familiar rule that we must consider the evidence in the light most favorable to the plaintiff. Mulford v. Hotel Co., 213 N. C., 603, 197 S. E., 169; Gunn v. Taxi Co., 212 N. C., 540, 193 S. E., 747; Matthews v. Cheatham, 210 N. C., 592, 188 S. E., 87; Smith v. Coach Line, 191 N. C., 589, 132 S. E., 567; Leonard v. Ins. Co., 212 N. C., 151, 157, 193 S. E., 166.

"While we do not wish to be considered as conceding that in every case brought against a physician for malpractice plaintiff’s cause must be sustained by the testimony of experts condemning the treatment received by the patient as improper (Covington v. James, 214 N. C., 71, 197 S. E., 701), it is unnecessary to go into that question here, or into the applicability of the doctrine of res ipsa loquitur, so often mooted and so ■often questioned. Pendergraft v. Royster, 203 N. C., 384, 166 S. E., 285; Ferguson v. Glenn, 201 N. C., 128, 159 S. E., 5; Nash v. Royster, 189 N. C., 408, 127 S. E., 356; Connor v. Hayworth, 206 N. C., 721, 175 S. E., 140. Such phases of the evidence as might renew the controversy on these questions may be disregarded for the purpose of the present decision. The testimony of experts brought in by the plaintiff, while maintaining the traditional reserve to be expected of professional men passing upon the efforts of others, was sufficiently condemnatory in inference and effect to carry the case to the jury. We do not intend by this to exclude from the jury any legitimate inferences which may be [664]*664drawn from any part of the evidence wbicb may be permissible under the established standards of the court. Upon this evidence we refrain from comment.

The judgment is

Reversed.

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Seawell, J.

Since this case comes here upon the propriety of a judgment as of nonsuit, we have not thought it necessary to extend the record by recounting defendant’s evidence, although the latter is not free from inferences favorable to the plaintiff. Ford v. R. R., 209 N. C., 108, 182 S. E., 717; Davidson v. Telegraph Co., 207 N. C., 790, 178 S. E., 603. It is a familiar rule that we must consider the evidence in the light most favorable to the plaintiff. Mulford v. Hotel Co., 213 N. C., 603, 197 S. E., 169; Gunn v. Taxi Co., 212 N. C., 540, 193 S. E., 747; Matthews v. Cheatham, 210 N. C., 592, 188 S. E., 87; Smith v. Coach Line, 191 N. C., 589, 132 S. E., 567; Leonard v. Ins. Co., 212 N. C., 151, 157, 193 S. E., 166.

"While we do not wish to be considered as conceding that in every case brought against a physician for malpractice plaintiff’s cause must be sustained by the testimony of experts condemning the treatment received by the patient as improper (Covington v. James, 214 N. C., 71, 197 S. E., 701), it is unnecessary to go into that question here, or into the applicability of the doctrine of res ipsa loquitur, so often mooted and so ■often questioned. Pendergraft v. Royster, 203 N. C., 384, 166 S. E., 285; Ferguson v. Glenn, 201 N. C., 128, 159 S. E., 5; Nash v. Royster, 189 N. C., 408, 127 S. E., 356; Connor v. Hayworth, 206 N. C., 721, 175 S. E., 140. Such phases of the evidence as might renew the controversy on these questions may be disregarded for the purpose of the present decision. The testimony of experts brought in by the plaintiff, while maintaining the traditional reserve to be expected of professional men passing upon the efforts of others, was sufficiently condemnatory in inference and effect to carry the case to the jury. We do not intend by this to exclude from the jury any legitimate inferences which may be [664]*664drawn from any part of the evidence wbicb may be permissible under the established standards of the court. Upon this evidence we refrain from comment.

The judgment is

Reversed.

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6 S.E.2d 523, 216 N.C. 653, 1940 N.C. LEXIS 357, Counsel Stack Legal Research, https://law.counselstack.com/opinion/butler-ex-rel-jones-v-lupton-nc-1940.

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