Gray v. . Weinstein

42 S.E.2d 616, 227 N.C. 463, 1947 N.C. LEXIS 456

• Court: Supreme Court of North Carolina
• Decided: May 21, 1947
• Status: Published

Opinion

Stacy, C. J.

The question for decision is whether the evidence suffices to carry the case to the jury. We think so. Love v. Zimmerman, 226 N. C., 389, 38 S. E. (2d), 220.

It is true there is no allegation of incompetency on the part of the defendant to practice his profession. It is alleged, however, that in the plaintiff’s ease (1) the defendant omitted to use reasonable care and diligence in the practice of his art, and (2) that he failed to exercise his best judgment in the treatment of the case. Either allegation, if supported by competent evidence, would require a jury finding. Nash v. Royster, 189 N. C., 408, 127 S. E., 356; Mullinax v. Hord, 174 N. C., 607, 94 S. E., 426.

The plaintiff says that, Avith knowledge of the child’s condition, the defendant failed to exercise due care in Avaiting more than ten hours before seeing the patient; and further that he omitted to exercise an enlightened judgment in pumping out his stomach without first ascertaining whether “he could take it.” Long v. Austin, 153 N. C., 508, 69 S. E., 500; McCracken v. Smathers, 122 N. C., 799, 29 S. E., 354; S. c., 119 N. C., 617, 26 S. E., 157.

The defendant, on the other hand, without presently taking issue with the facts as detailed by plaintiff’s witnesses, seeks to uphold the judgment on the ground that there is no evidence of any improper treatment or that what was done departed from the methods of approved practice in general use. Mitchem v. James, 213 N. C., 673, 197 S. E., 127; McLeod v. Hicks, 203 N. C., 130, 164 S. E., 617; Smith v. Wharton, 199 N. C., 246, 154 S. E., 12; Crooks v. Jonas, 204 N. C., 797, 169 S. E., 218; Ferguson v. Glenn, 201 N. C., 128, 159 S. E., 5; Smith v. McClung, 201 N. C., 648, 161 S. E., 91.

We agree with the plaintiff that whether the defendant proceeded with due and ordinary care, under the circumstances and conditions shown by the record, was a question of fact for the jury. Covington v. James, 214 N. C., 71, 197 S. E., 701; Brewer v. Ring and Valk, 177 N. C., 476, 99 S. E., 358; Butler v. Lupton, 216 N. C., 653, 6 S. E. (2d), 523; Davis v. Wilmerding, 222 N. C., 639, 24 S. E. (2d), 337.

The absence of expert medical testimony, disapproving the treatment or lack of it, is not perforce fatal to the case. There are many known and obvious facts in the realm of common knowledge which speak for themselves, sometimes even louder than witnesses, expert or otherwise.

The case as made survives the demurrer.

Reversed.