Tady v. Warta, No. 22609.

CourtSupreme Court of Nebraska
Writing for the CourtREDICK
Citation196 N.W. 901,111 Neb. 521
Decision Date15 January 1924
Docket NumberNo. 22609.
PartiesTADY v. WARTA.

111 Neb. 521
196 N.W. 901

TADY
v.
WARTA.

No. 22609.a1

Supreme Court of Nebraska.

Jan. 15, 1924.



Syllabus by the Court.

In an action against a physician for malpractice where the acts charged as negligence require in their performance the exercise of professional skill and knowledge, and are such with respect of which a layman can have no knowledge at all, the jury may not draw the inference of negligence without the aid of expert testimony as to the quality of such acts to guide them; in such case the doctrine of “res ipsa loquitur” has no application.

Evidence examined, and held insufficient to require the submission to the jury of the question of negligence.

By overruling defendant's motion for a directed verdict at the close of plaintiff's case, the court is not precluded from sustaining a similar motion at the close of all the evidence.


Appeal from District Court, Douglas County; Goss, Judge.

Action by Rosie Tady against J. J. Warta. Defendant's motion, at the close of all the evidence, to dismiss the case, was sustained. From an order overruling a motion for new trial, plaintiff appeals. Affirmed.

[196 N.W. 901]

Geo. H. Merten, of Omaha, for appellant.

Smith, Schall, Howell, Howard & Sheehan, of Omaha, for appellee.


Heard before MORRISSEY, C. J., GOOD and ROSE, JJ., and REDICK, District Judge.

REDICK, District Judge.

Action against a physician for malpractice. Defendant was a specialist, known as an oculist and aurist, and was employed by plaintiff to treat her for sinus trouble. An operation being necessary in the judgment of defendant, for the purpose of treating an infected antrum from which plaintiff was suffering, he used a sharp steel chisel about five inches long, placing it in the nostril and driving it through the antrum bone by the use of a small steel mallet. In doing this a small piece was broken off the point of the chisel and remained imbedded in the bone. Plaintiff testifies that the instrument was broken while the doctor was removing it, when he gave it a twist and a jerk, while defendant claims it broke after he had tapped it two or three times with the mallet. The negligence charged is: (1) That the use of the chisel and mallet was unnecessary and an improper method of treatment; (2) the breaking of the point of the chisel. At the close of plaintiff's evidence defendant moved for a directed verdict, which was denied; but at the close of all the evidence defendant's motion to discharge the jury and dismiss the case was sustained. Motion for new trial having been overruled, plaintiff appeals.

The first error assigned is the sustaining of defendant's motion to dismiss the case. Plaintiff contends that, looking upon the plaintiff's evidence in the most favorable light to plaintiff, as we must do for the purpose of this question, there was sufficient evidence to go to the jury as to defendant's negligence. Thus viewing the evidence, the following facts appear:

The chisel was driven through the maxillary bone in which it was imbedded; that in taking out the chisel the doctor twisted it and jerked it; that the point was broken off and extended partly into the sinus. Two specialists who afterwards treated plaintiff drained the antrum without the use of a chisel. These doctors called by plaintiff testified that the method adopted by defendant was one of the usual methods, and not an improper one; that the instrument will break occasionally without any fault of the operator; that might be caused by an undiscoverable defect in the instrument; the fact that it broke does not indicate lack of care. One of them expressed the opinion that in the present case the breaking was a mere accident.

The claim that the method of operation was improper must fall in view of the testimony of the experts that it was one of the usual methods, and its selection was a matter for the exercise of the doctor's judgment; and, even though he were mistaken (which is not shown), no liability attaches under such circumstances.

[1] Plaintiff argues that the jury may logically infer from the fact that the chisel broke that the defendant negligently used too much force with the mallet. He says:

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20 practice notes
  • Whetstine v. Moravec, No. 44945.
    • United States
    • United States State Supreme Court of Iowa
    • April 2, 1940
    ...evidence, and permitted a recovery by plaintiff where a dentist that injected lysol into her gums instead of an anesthetic. Tady v. Warta, 111 Neb. 521, 196 N.W. 901,McGraw v. Kerr, 23 Colo.App. 163, 128 P. 870, are cited but the facts distinguish them. Krueger v. Chase, 172 Wis. 163, 177 N......
  • Whetstine v. Moravec, 44945.
    • United States
    • United States State Supreme Court of Iowa
    • April 2, 1940
    ...evidence, and permitted a recovery by plaintiff where a dentist that injected lysol into her gums instead of an anesthetic. Tady v. Warta, 111 Neb. 521, 196 N.W. 901,McGraw v. Kerr, 23 Colo.App. 163, 128 P. 870, are cited but the facts distinguish them. Krueger v. Chase, 172 Wis. 163, 177 N......
  • Flock v. J. C. Palumbo Fruit Company, 6804
    • United States
    • United States State Supreme Court of Idaho
    • October 31, 1941
    ...118, L. R. A. 1915C, 595; Berkholz v. Benepe, 153 Minn. 335, 190 N.W. 800; Lorenz v. Lerche, 157 Minn. 437, 196 N.W. 564; Tady v. Warta, 111 Neb. 521, 196 N.W. 901. "There is no question but that the general rule is as contended by the appellant, but we are of the opinion that where, as her......
  • Whitmore v. Herrick, No. 38636.
    • United States
    • United States State Supreme Court of Iowa
    • March 6, 1928
    ...v. Pfahler, 279 Pa. 377, 124 A. 130;Hamilton v. Harris (Tex. Civ. App.) 204 S. W. 450;Ewing v. Goode (C. C. A.) 78 F. 442;Tady v. Warta, 111 Neb. 521, 196 N. W. 901;Stemons v. Turner, 274 Pa. 228, 117 A. 922, 26 A. L. R. 727;Vaughan v. Memorial Hospital (W. Va.) 136 S. E. 837. While on the ......
  • Request a trial to view additional results
20 cases
  • Whetstine v. Moravec, No. 44945.
    • United States
    • United States State Supreme Court of Iowa
    • April 2, 1940
    ...evidence, and permitted a recovery by plaintiff where a dentist that injected lysol into her gums instead of an anesthetic. Tady v. Warta, 111 Neb. 521, 196 N.W. 901,McGraw v. Kerr, 23 Colo.App. 163, 128 P. 870, are cited but the facts distinguish them. Krueger v. Chase, 172 Wis. 163, 177 N......
  • Whetstine v. Moravec, 44945.
    • United States
    • United States State Supreme Court of Iowa
    • April 2, 1940
    ...evidence, and permitted a recovery by plaintiff where a dentist that injected lysol into her gums instead of an anesthetic. Tady v. Warta, 111 Neb. 521, 196 N.W. 901,McGraw v. Kerr, 23 Colo.App. 163, 128 P. 870, are cited but the facts distinguish them. Krueger v. Chase, 172 Wis. 163, 177 N......
  • Flock v. J. C. Palumbo Fruit Company, 6804
    • United States
    • United States State Supreme Court of Idaho
    • October 31, 1941
    ...118, L. R. A. 1915C, 595; Berkholz v. Benepe, 153 Minn. 335, 190 N.W. 800; Lorenz v. Lerche, 157 Minn. 437, 196 N.W. 564; Tady v. Warta, 111 Neb. 521, 196 N.W. 901. "There is no question but that the general rule is as contended by the appellant, but we are of the opinion that where, as her......
  • Whitmore v. Herrick, No. 38636.
    • United States
    • United States State Supreme Court of Iowa
    • March 6, 1928
    ...v. Pfahler, 279 Pa. 377, 124 A. 130;Hamilton v. Harris (Tex. Civ. App.) 204 S. W. 450;Ewing v. Goode (C. C. A.) 78 F. 442;Tady v. Warta, 111 Neb. 521, 196 N. W. 901;Stemons v. Turner, 274 Pa. 228, 117 A. 922, 26 A. L. R. 727;Vaughan v. Memorial Hospital (W. Va.) 136 S. E. 837. While on the ......
  • Request a trial to view additional results

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