This is an action to recover damages alleged to have been caused by the negligent performance of an operation on the person of the plaintiff by a surgeon employed by the defendant to perform the operation.
All the allegations in the complaint, which constitute the cause of action alleged therein, are denied in the answer.
At the close of the evidence for the plaintiff, the defendant moved for judgment as of nonsuit. The motion was allowed, and plaintiff duly excepted. C. S., 567.
From judgment dismissing the action, the plaintiff appealed to the Supreme Court. This action was first tried at January Term, 1930, of the Superior Court of Yancey County. From the judgment at said trial, the defendant appealed to the Supreme Court. This appeal was heard at Spring Term, 1930, of this Court. Defendant's contention on said appeal that there was error in the refusal of the trial court to allow its motion for judgment as of nonsuit was not considered for the reason that this contention was not duly presented by exceptions taken at the trial. Its contention that there was error in the refusal of the court to instruct the jury in accordance with its request to answer the first issue "No" was sustained and a new trial ordered. We were of opinion that upon all the evidence introduced at the trial, plaintiff was not entitled to recover in this action. Penland v.Hospital, 199 N.C. 314, 154 S.E. 406.
This appeal is from the judgment rendered at February Term, 1932, of the Superior Court of Yancey County, dismissing the action as of nonsuit. Plaintiff contends that there was error in the judgment for that the evidence introduced by her was sufficient to show the facts to be as alleged in her complaint, and that this evidence should have been submitted to the jury. The evidence was substantially the same as that offered by the plaintiff at the former trial. For this reason, plaintiff's contention cannot be sustained. In accordance with the decision on the former appeal, the judgment dismissing the action as of nonsuit is
Affirmed. *Page 735