115 Neb. 589 | Neb. | 1927
This is an action to recover damages in the sum of $87,600 for malpractice by defendant as physician and surgeon. Defendant denied the negligence with which he was charged in the petition. The cause was tried to a jury. Evidence on both sides was adduced at great length. Over 3,600 questions were propounded to witnesses and the proofs covered more than 700 pages of the record. After the parties rested, the trial court on motion of defendant excused the jury and dismissed the action. Plaintiff appealed.
The appeal presents the involuntary nonsuit for review. Owing to the nature of the charges against defendant and the volume and character of the testimony, grave questions searching all the evidence were submitted to the trial court. The review also requires consideration of the evidence from every standpoint, but details to which the parties resorted in the trial, in the briefs and in the arguments must necessarily be avoided in expressing the views of the appellate court, i
Plaintiff, a resident 's? Dodge county, became suddenly
Negligence in the diagnosis after the left kidney was exposed and in the permanent removal of that organ without sufficient cause were controverted issues in the case. In testing the sufficiency of the evidence for the purpose of reviewing a compulsory nonsuit, the court is committed to the following rule: Where the district court excuses the jury and dismisses the action after admitting proof by each party, the appellate court, in reviewing the decision, will assume the existence of every material fact which the evidence on behalf of plaintiff establishes or tends to prove and give him the benefit of proper inferences therefrom. Central Nat. Bank v. Ericson, 92 Neb. 896; Nothdurft v. City of Lincoln, 66 Neb. 434; Paxton v. State, 59 Neb. 460; Harris v. Lincoln Traction Co., 78 Neb. 681; Tate & Ehr
In the present case there was evidence tending to prove that the left kidney, when raised to the surface of plaintiff’s body for examination during the exploratory operation, did not disclose pus visible to the naked eye, and that defendant failed to require a microscopic examination for indications of infection. There was other evidence tending to prove that the capsule of the kidney and the surrounding tissues did not disclose the presence of pus. There is also testimony, if believed by the jury, sufficient to create the inference that the actual condition of the left kidney and, of the surrounding region did not necessitate the removal of that organ, and that defendant did not exercise ordinary skill and care in making a diagnosis and in removing the kidney after exposing it for examination. The necessity for an exploratory operation implied lack of definite information disclosing the real cause of plaintiff’s abnormal condition and required the usual and ordinary care exercised in making a diagnosis in view of the additional knowledge acquired by the exploration. On this issue the witnesses did not agree. Where the evidence is conflicting on the trial of a controverted issue of fact, the credibility of witnesses and the probative effect of their testimony are questions for the jury.
Where the evidence is sufficient to sustain a verdict in favor of plaintiff on a material issue of fact raised by the pleadings, it is error to excuse the jury arid dismiss the action.
In behalf of defendant it is argued that the three operating physicians and surgeons used their best judgment with full knowledge of the history of the case and of former explorations, examinations, observations, treatments ' arid conditions. Physicians and surgeoné performing an exploratory operation resulting in the removal of a kidney
For error in failing to submit issues of fact to the jury, the judgment is reversed and the cause remanded for further proceedings.
Reversed.