(dissenting). I dissent. There is no claim in this case that the use of a dentist’s mallet and chisel was a departure from an approved method generally in use in extracting an impacted tooth. Nor is there any evidence that the dentist struck such an exceptionally hard blow that any reasonable person would have anticipated that some dire result must follow. The substance of the proof on the subject of the force used is that the nurse had been tapping the chisel with the mallet and that defendant took hold of the mallet and struck “ with force,” “ a great deal harder ” than the nurse. Assuming that the method was proper, the force to be applied in hammering was a matter of the dentist’s judgment, and, in the absence of some proof of extreme force or some expert proof that the force applied in the present case was such that a reasonably prudent dentist exercising adequate professional skill *635should have anticipated an untoward result because of the nature of the blow struck, the plaintiff failed to establish a prima facie case. (Robbins v. Nathan, 189 App. Div. 827.) In other jurisdictions the rule of res ipsa loquitur has been held not to apply and the courts have said that there was no presumption of negligence from a resulting fracture of a part of the jawbone in extracting an impacted tooth. (Donoho v. Rawleigh, 230 Ky. 11; 18 S. W. [2d] 311; Blodgett v. Nevins, 189 Ill. App. 544.) This case is readily distinguishable from those where foreign substances are left in operative wounds and those where the surgeon’s knife has been carelessly permitted to injure undiseased tissue not in the immediate field of the operation. Here, so far as the evidence disclosed, the dentist applied the chisel at the proper point, but erred in his judgment as to how hard a blow he might apply with the mallet. No presumption of negligence should arise from an error in judgment, or solely on the basis of an unfortunate result. (Pike v. Honsinger, 155 N. Y. 201; Stone v. Goodman, 241 App. Div. 290.) Defendant’s statement, that he guessed he had hit too hard, did not show anything more than that defendant had misjudged the amount of force that should have been applied.
The judgment should be affirmed.
Dore, J., concurs.
Judgment reversed and a new trial ordered, with costs to the appellant to abide the event.