ON REHEARING
*283Grerald H. Robinson and Peterson, Lent & Paulson, Portland, for the petition. LUSK, J.In a petition for rehearing the plaintiff criticizes our opinion as erroneously applying the same standard of judicial review to an appeal from an order setting aside a judgment and granting a new trial as is proper *284when the appeal is from the judgment. We quote from the petition:
“Plaintiff contends that in view of the Trial Court’s exercise of its discretion in granting a new trial, the proper approach should have been to determine whether it had abused its discretion.”
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“The Court conducts its search as if it were looking for reversible error. In fact, the issue is whether the Trial Court abused its discretion; whether, in other words, looking at the record as a whole, there were legitimate grounds for the Trial Court to feel that the plaintiff had been deprived of a fair trial.”
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“We must again emphasize the discretionary aspect of the matter when viewed from the Trial Court’s point of view. There is sound reason for leaving these matters to the discretion of the Trial Court in view of the fact that he has heard the witnesses, been able to gauge a jury’s reaction to the testimony, and has, uniquely, been in a position to view the trial as a whole and ascertain whether justice has been served.”
It is true that this court examined the record in this case to determine whether it disclosed error, but it is not correct to say, as counsel for plaintiff apparently think, that the trial court in this state has discretion to set aside the verdict of a jury regardless of error. That is the rule in other jurisdictions, but not in Oregon where the constitution prohibits the re-examination by any court of a fact tried by a jury.① It is an *285erroneous notion that the circuit courts of this state have discretion to order a new trial because the presiding judge thinks that a jury has returned an unjust verdict or one which is against the weight of the evidence.
The opinion of Mr. Justice Rand in Timmins v. Hale, 122 Or 24, 32-33, 256 P 770, contains a definitive statement of the limitations on the power of the circuit courts in this regard. After reviewing prior decisions, the court there said:
“Prom these decisions it is now settled law in this state that a trial court is authorized to set aside a judgment and grant a new trial because of some error of law occurring upon the trial as to matters not called to the attention of the court during the trial and as to matters to which no exception was taken. But before the court is authorized to act, the error must have been prejudicial and it must have prevented the party in whose interest the power is invoked from having his case fairly presented and tried, and we think it must have been an error which if the matter had been seasonably called to the attention of the court and an adverse ruling made and an exception taken, would have been sufficient to justify the reversal of the judgment upon appeal; for as has been said, ‘no man is entitled to more than one fair trial,’ and therefore insignificant errors or irregularities which are not prejudicial are not grounds upon which a trial court is authorized to exercise the power of setting aside a judgment on a verdict and granting a new trial. In respect to the necessity of there having been a ruling in the lower court and an exception taken which is requisite to a reversal upon appeal, there is a clear and well-recognized distinction between the power of the trial court on the one hand to set aside a judgment and grant a new trial, and the power of the Supreme Court to *286reverse a judgment upon appeal, for it has been repeatedly held by this court, that it is not error alone, but error legally excepted to that constitutes grounds for reversal: Maddox v. McHatten, 111 Or. 324 (224 Pac. 833, 226 Pac. 427), and authorities there cited.
“There are other grounds provided for by statute for the setting aside of a judgment and the granting of a new trial in the granting of which the trial court exercises a discretionary power. But as to the matters hereinbefore referred to, namely, the setting aside of a judgment and granting a new trial because of errors of law occurring upon the trial, the court in granting the motion or in setting aside the judgment upon his own motion exercised no discretionary power, for in such case the court is controlled by positive rules of law.”
Plaintiff cites Strandholm v. Gen. Const. Co., 235 Or 145, 382 P2d 843, where, citing Lyons v. Browning et al, 170 Or 350, 354, 133 P2d 599, we said:
“* * * one of the purposes of the new trial statute is to enable the trial judge to correct errors and to cure miscarriages of justice, notwithstanding the failure of counsel to make a record which should authorize this court to reverse the judgment on appeal.”
In both these cases the decisions affirming the orders granting a new trial were based upon errors committed on the trial. This is also true of Neal v. Haight, 187 Or 13, 206 P2d 1197 (another case cited by the plaintiff) where we said at page 31:
“The power of the trial court or judge to grant a new trial upon its own motion, setting forth the grounds upon which the order was made is not dependent upon the existence of reversible error as upon appeal to this court, but is dependent upon the existence of prejudicial error, and upon appeal to this court such an order may be affirmed, al*287though no objection or exception was taken in the trial court.”
Apart from the foregoing, the plaintiff argues again that errors were committed on the trial and that among these was the failure of the trial court to give a peremptory instruction that the defendant was negligent. We considered this question at length in our former opinion and think it unnecessary to restate our reasons for rejecting the plaintiff’s contention. It may be added, however, that the petition for rehearing, in effect, concedes that there was conflict in the evidence upon the effect of the “prolonged immobilization” of plaintiff’s hand when it says:
“All of the expert witnesses in this case, except the defendant himself, agreed in one form or another that the prolonged immobilization which commenced with the improper casting by Dr. Woodmansee and continued for over seven weeks caused all or part of the plaintiff’s permanent injury”.
OES 41.260 reads:
“The direct evidence of one witness who is entitled to full credit is sufficient for proof of any fact except usage, perjury and treason.”
Even though there was no other evidence favorable to the defendant on the question, his testimony made an issue for the jury and the jury were the sole judges of his credibility. The fact that, as counsel for the plaintiff say, Dr. Woodmansee “may be said to have a certain interest in the outcome of the case” was a proper matter to be considered by the jury in appraising his testimony, but is irrelevant to the question whether there was a conflict in the evidence.
We expressed the view in our former opinion that the other grounds upon which the order for a new *288trial was based did not have sufficient merit to warrant discussion. Two of these are again called specifically to our attention by the petition for rehearing and will be briefly noticed. The court instructed the jury as follows:
“It is a rule of law that one who has sustained injury through the fault of another is bound to lessen the damage as far as practical by the use of ordinary care and diligence and to follow the reasonable instructions and submit to reasonable treatment by the attending physician.
“Thus, if you find that plaintiff failed to follow the instructions of defendant, and you further find that such instructions were reasonable and that as a proximate result of such failure she sustained any greater injury by reason thereof, then in that event plaintiff is not entitled to recover for any greater injury than might have been avoided by the exercise of such care.”
Counsel for the plaintiff, in excepting to the instruction, stated:
“I think it must be a correct rule that * * * if she failed to follow the instructions of any doctor who treated her in respect to exercising her hand or fingers, then that would be the test, not limited to the defendant.”
Counsel for the defendant agreed with the objection and asked that the jury be so instructed. The court announced that he would so advise them and counsel for the plaintiff withdrew the objection. The court then said that there was no evidence to establish the fact that the plaintiff did not follow instructions to the best of her ability, whereupon counsel for the plaintiff saved an exception to giving the instruction.
The situation presented by this record is somewhat like that we dealt with in the recent case of *289Strandholm v. Gen. Const. Co., supra, where insurance was improperly injected into the case to the prejudice of the plaintiff. The circuit court granted a new trial for this error and this court sustained the order notwithstanding that counsel for the plaintiff had deliberately refrained from moving for a mistrial. The difference between the two cases is that the error in the Strandholm case was prejudicial, while here the error, if any, was immaterial, since the instruction complained of related to the measure of damages and the jury returned a verdict for the defendant. Thus, it was said by Mr. Justice Brand in Penn v. Henderson, 174 Or 1, 20, 146 P2d 760:
“By another instruction on damages the court advised the jury in substance that the defendant would not be liable for such damage as was caused by plaintiff’s own negligence, if any, in failing to take such steps as a reasonably prudent person would take for the care and repair of his injury. We have grave doubts as to whether there was evidence of any negligent failure by the plaintiff to care for his injury sufficient to justify this instruction; however, we are of the opinion that no error prejudicial to the plaintiff’s rights was committed. The question of the defendant’s liability was fairly submitted and the jury by its verdict found the defendant not liable. Instructions concerning the measure of damages thus became immaterial.”
The other claimed error to which specific attention is called consisted in the court instructing the jury that the standard of care which the defendant was required to employ was that of the ordinarily prudent, careful and skillful osteopath. The plaintiff argues that because expert testimony for the plaintiff was given by Doctor Mickel, a doctor of medicine, the jury might have reasoned that he had reference in his *290testimony to a standard of care somewhat different from that which applied to the case under the court’s instruction.
Before Doctor Mickel gave any testimony relative to the immediate issues in this ease, he was asked the following question:
“And now, Dr. Mickel, do you know whether or not the same general principles in respect to the treatment of Colles’ fractures is the same in the field of Osteopathy as compared to the field of medicine ?”
He answered: “Yes.” There is no evidence to the contrary and no contention to the contrary. It is fanciful to suggest that when Doctor Mickel was later asked by counsel for the plaintiff to explain the standard of care in the community for the reduction of a Colles’ fracture and answered the question, any juror would assume that either counsel for the plaintiff or the witness was referring to a standard of care not applicable to the defendant. Since the defendant is an osteopath and the evidence reveals without contradiction that, so far as this case is concerned, he was governed in his treatment of the plaintiff’s injury by the same norms that apply to medical doctors, it was entirely proper for the court to instruct upon the standard of care applicable to osteopaths. It seems to us that the plaintiff’s criticism of the instruction is captious.
The petition for rehearing is denied.
“In actions at law, where the value in controversy shall exceed twenty dollars, the right of trial by jury , shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any court of this state, unless the court can affirmatively say there is no evidence to support the verdict. * * *” Oregon Constitution, Article VII, § 3.