Nance v. Hitch

• Decision Date: 12 June 1953
• Docket Number: No. 450,450
• Citation: 238 N.C. 1,76 S.E.2d 461
• Court: North Carolina Supreme Court
• Parties: , 41 A.L.R.2d 318 NANCE, v. HITCH.

Page 461

76 S.E.2d 461

238 N.C. 1, 41 A.L.R.2d 318

NANCE, v. HITCH.

No. 450

Supreme Court of North Carolina.

June 12, 1953

Bickett & Banks and W. H. Yarborough, Raleigh, for plaintiff appellant.

Brassfield & Maupin, Robert L. Savage, Jr., Raleigh, for defendant appellee.

WINBORNE, Justice.

Did the court below err in granting defendant's motion for a judgment as of nonsuit at the conclusion of all the evidence? This is the question presented on this appeal.

In considering such motion, 'the defendant's evidence, unless favorable to the plaintiff, is not to be taken into consideration, except when not in conflict with the plaintiff's evidence, it may be used to explain or make clear that which has been offered by the plaintiff', Stacy, C. J., in Harrison v. North Carolina R. Co., 194 N.C. 656, 140 S.E. 598, 600, citing State v. Fulcher, 184 N.C. 663, 113 S.E. 769. See Rice v. City of Lumberton, 235 N.C. 227, 69 S.E.2d 543, where other cases in which this rule was applied are cited. See also Williams v. Robertson, 235 N.C. 478, 70 S.E.2d 692; Ward v. Cruse, 236 N.C. 400, 72 S.E.2d 835; Harris Express, Inc., v. Jones, 236 N.C. 542, 73 S.E.2d 301.

Therefore, taking the evidence offered by plaintiff, and so much of defendant's evidence as is favorable to the plaintiff, or tends to explain and make clear that which has been offered by the plaintiff, as shown in the case on appeal, in the light most favorable to plaintiff, and giving to plaintiff the benefit of every reasonable intendment upon the evidence and every reasonable inference to be drawn therefrom, as the law directs in considering a motion for judgment as of nonsuit, G.S. § 1-183, this Court is of opinion and holds that the evidence is insufficient to carry the case to the jury on the issue of negligence of defendant as alleged in the complaint, and that the question posed merits a negative answer.

Textwriters, interpreting the law as declared in courts of the land, say that 'the rules governing the duty and liability of physicians and surgeons in the performance of professional services generally * * * are applicable to them in the use and manipulation of an X-ray machine'; that 'the degree of care, skill, and diligence required of an X-ray operator is fixed by that ordinarily possessed and exercised by others in the same line of practice and work in similar localities'; and that 'such operator impliedly represents to his patient that he possesses the ordinary skill and learning of members of his profession, and that he will exercise reasonable skill, care and diligence in his treatment'. 41 Am.Jur. 207, Physicians and Surgeons, § 89. See also 70 C.J.S., Physicians and Surgeons, § 41, page 946.

And it is said that 'this rule involves dual standards of skill and care, one having reference to the mechanical operation of the apparatus, and the other to the possession and exercise of the professional skill and care of the physician in his diagnosis and treatment of the patient's ailment in other respects than the mere operation of the machine'; and that 'a physician who possesses the requisite skill and knowledge, and exercises ordinary and reasonable care and skill in the operation of an X-ray machine is not liable for damages for burns resulting from X-ray treatment in a proper case where no negligence is shown'. 41 Am.Jur. pp. 207-8, Physicians and Surgeons, § 89. See annotations on subject 'Liability for injury by X-ray'. 13 A.L.R. 1414, 26 A.L.R. 732 57 A.L.R. 268, and 60 A.L.R. 259.

While this Court has not treated of this particular phase of duty and liability of physicians, the principles are consonant with the rules enunciated by this Court, and prevailing in North Carolina in respect to the duty and liability of physicians in the performance of professional services generally. See Nash v. Royster, 189 N.C. 408, 127 S.E. 356; Grier v. Phillips, 230 N.C. 672, 55 S.E.2d 485; Jackson v. Mountain Sanitarium, 234 N.C. 222, 67 S.E.2d 57; Jackson v. Joyner, 236 N.C. 259, 72 S.E.2d 589.

In Nash v. Royster, supra, it is stated that the law holds a physician or surgeon 'answerable for any injury to his patient proximately resulting from a want of that degree of knowledge and skill, ordinarily possessed by others of his profession, or for the omission to use reasonable care and diligence in the practice of his art, or for the failure to exercise his best judgment in the treatment of the case.' [189 N.C. 408, 127 S.E. 359.]

Moreover, in the case of McCracken v. Smathers, 122 N.C. 799, 29 S.E. 354, this Court held that the degree of care and skill required of a dentist to his patient is that possessed and exercised by the ordinary members of his profession. And in Smith v. McClung, 201 N.C. 648, 161 S.E. 91, 93, citing the McCracken case, the Court said that 'dentists, in their particular fields, are subject to the same rules of liability as physicians and surgeons.'

Accordant with the reasoning of these decisions, the rules governing the duty and liability of physicians and surgeons in the performance of professional services generally, may properly be applied to a...