I agree with the majority that the judgment in favor of the hospital, based upon dismissal at the conclusion of all of the testimony, was erroneous. A question of fact as to negligence was established, and the issues should have been presented to the jury. I disagree, however, that a new trial is required as to the defendant doctors.
The majority state that the verdict in favor of the defendant doctors was amply supported by the evidence. I go further and say that the verdict was overwhelmingly supported by the evidence and that, had the jury returned a contrary verdict, it could not be sustained. Nevertheless, the majority have reversed the determination of the jury in this long and involved case upon ■the very narrow basis of two statements made by the ■ Trial Judge after his main charge, statements by the way to which no exception was taken; so that, if ive are going to reverse *196on this very narrow ground, we must do so in the interest of justice. Reversal in the interest of justice does not lend itself to this caso. As I have indicated, it is very doubtful if a verdict against the doctors could stand for many reasons. This trial occupied 12 court days, it was long, involved, and complicated. The direct charge concerning the duties and responsibilities of the doctors was correct'. The remarks upon which reversal is grounded — side remarks, by the way—were not directed to the doctors’ responsibilities but concerned a previous ruling that had been made in favor of the hospital. In any event they were not prejudicial.
The majority have gone a long way in selecting these two isolated and incidental passages to reverse a very sensible determination by the jury, completely in accord with the weight of evidence. It seems to me that in reversing as to the doctors the court, in attributing the jury’s verdict to these so-called errors, is really delving into considerations and conclusions far beyond the reasonable probabilities involved. In Flamm v. Noble (274 App. Div. 1037) the court refused to consider whether a portion of the charge was erroneous because it was not excepted to. In analyzing the case, which apparently was long and complicated, as is the present case, the court said (p. 1039) : “It is nearly impossible to try a case of this length and complexity with freedom from error and mishap. A new trial should not be ordered, therefore, except for error or misconduct both substantial and prejudicial.” (See, also, Kern v. News Syndicate Co., 20 A D 2d 528.)
In my opinion, the claimed errors, if in fact they were erroneous, were not so comparatively substantial, prejudicial and important as to require the retrial of this long and complicated case. The defendants who were successful before the jury should not be required to undergo another trial. The judgment in favor of the defendant doctors should be affirmed.