The plaintiff does not contend that there is liability on the part of the defendant Dr. R. L. Pittman, but the plaintiff contends that the court was in error in sustaining defendant’s motion to nonsuit as to Dr. W. T. Parker at the close of the plaintiff’s evidence. We see no error in the ruling of the court below.
In Pendergraft v. Royster, 203 N. C., 384 (393), it is written: “The general rule is to the effect that there is in malpractice actions no presumption of negligence from error of judgment in the diagnosis by a doctor of the patient’s illness, or in the treatment prescribed in the failure to successfully effect a remedy or to accomplish as good results as someone else might have done. A doctor is neither a warrantor of cures nor an insurer.” Connor v. Hayworth, 206 N. C., 721.
We see no sufficient evidence to be submitted to the jury. Taking the history of plaintiff’s trouble, as given by himself on cross-examination and the testimony of Dr. Nash, his physician,'we see no substantial injury, if injury at all, caused by the X-ray operator (if she was an agent of defendant Parker). Dr. Nash, 18 or 20 months before the trial, found an ulcer very much as it was at the time of the trial — it was chronic. It was ulcer mastoid. The allegations of plaintiff are not supported by proof. There is no sufficient probative evidencé that plaintiff’s condition was caused from the X-ray treatment complained of.
The evidence to be submitted to the jury must be more than conjectural or speculative. There must be evidence from which a jury might reasonably and properly conclude that there was negligence.
For the reasons given, the judgment of the court below is
Affirmed.
Baenhill, J., took no part in the consideration or decision of this case.