Traverse v. Wing
| Decision Date | 01 July 1927 |
| Citation | 260 Mass. 527 |
| Parties | FRANCIS J. TRAVERSE v. ABNER T. WING. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
March 24, 1927.
Present: RUGG, C.
Negligence, Of dentist. Evidence, Matter of conjecture, Inference.
Where, at the trial of an action of tort against a dentist for personal injuries resulting from an infection, there was evidence that the infection might have been due to unsterilized implements or to defective novocaine, but that it was impossible to decide to which of the two it should be attributed, and the trial judge ruled without objection by either party that the evidence would not justify a finding that the plaintiff's injuries were due to lack of sterility in novocaine used and that, if the plaintiff should recover, it must be upon the basis of lack of sterility of the needle, the defendant's responsibility still is left to conjecture, and a verdict for the defendant should have been ordered.
TORT for personal injuries alleged to have resulted from negligence of a dentist. Writ dated April 30, 1923.
The action previously was before this court after a trial before Hammond, J., when exceptions by the plaintiff to the ordering of a verdict for the defendant were sustained. The action then again was tried before Brown, J. Material evidence is stated in the opinion.
The bill of exceptions states: "In the course of his charge to the jury, the judge instructed the jury that if the evidence in the case was to be believed, there was no evidence which would justify a finding that the plaintiff's injuries were due to lack of sterility of the novocain; and that if the plaintiff should recover damages it must be upon the basis of lack of sterility of the needle." No objection or exception to such instruction is shown in the record. There was a verdict for the plaintiff in the sum of $7,500 of which, under order of the judge on a motion for a new trial, the plaintiff remitted all in excess of $5,000.
R.H. Wiswall, for the defendant. W.W. Clarke, (J.W. Lyons with him,) for the plaintiff.
After the decision reported as Traverse v. Wing, 256 Mass. 320 , this action has been tried to a jury for the second time and is before us upon a bill of exceptions which presents the single question whether there was error in refusing to direct a verdict for the defendant.
The evidence differs in material respects from that which we held...
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In re De Filippo
...v. Shaw, 244 Mass. 57, 60, 138 N. E. 247;Gates v. Boston & Maine Railroad, 255 Mass. 297, 301 et seq., 151 N. E. 320;Traverse v. Wing, 260 Mass. 527, 157 N. E. 581;Atlas v. Silsbury-Gamble Motors Co., 278 Mass. 279, 282, 283, 180 N. E. 127;Walker v. Benz Kid Co., 279 Mass. 533, 537, 181 N. ......
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Defilippo's Case
... ... 526 , 528. Hanna ... v. Shaw, 244 Mass. 57, 60. Gates v. Boston & Maine ... Railroad, 255 Mass. 297 , 301, et seq. Traverse v ... Wing, 260 Mass. 527 ... Atlas v. Silsbury-Gamble ... Motors Co. 278 Mass. 279, 282, 283. Walker v. Benz ... Kid Co. 279 Mass. 533 , 537 ... ...
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Mahoney v. Harley Private Hosp., Inc.
...337, 84 N. E. 128;Bigwood v. Boston & Northern Street Railway Co., 209 Mass. 345, 95 N. E. 751,35 L. R. A. (N. S.) 113;Traverse v. Wing, 260 Mass. 527, 157 N. E. 581, and Morris v. Weene, 258 Mass. 178, 154 N. E. 860, are not controlling here. Exceptions ...
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...or of any one for whom it was responsible can be found to have existed. That is not enough. See Morris v. Weene, 258 Mass. 178 . Traverse v. Wing, 260 Mass. 527. Bigwood Boston & Northern Street Railway, 209 Mass. 345 . Judgment on the verdicts. ...