The trial court erred in granting judgment in favor of the defendant notwithstanding the verdict for the plaintiffs.
"A motion for judgment notwithstanding the verdict involves no element of discretion, and should not be granted unless it can be said, as a matter of law, that there is neither evidence nor reasonable inference from evidence to sustain the verdict." Hartv. Hogan, 173 Wn. 598, 24 P.2d 99.
"It is a settled rule that a motion for judgment notwithstanding the verdict calls for the exercise of no discretion on the part of the court, and can only be granted when there is no evidence and no reasonable inference from evidence to go to the jury. Hopkins v. Lotus Cafe, Inc., 161 Wn. 493,297 P. 178. That rule is applicable in malpractice cases as well as others. Stickney v. Congdon, 140 Wn. 670, 250 P. 32;Samuelson v. Taylor, 160 Wn. 369, 295 P. 113; Sears v.Lydon 169 Wn. 92, 13 P.2d 475.
". . . . . . . . . . .
"There are instances where facts alone prove the negligence, and where it is unnecessary to have the opinions of persons skilled in the particular science to show unskilled and negligent treatment. Cornwell v. Sleicher, 119 Wn. 573, 205 P. 1059.
"It is not necessary that a case of malpractice be proved by direct and positive evidence, and it may be proved by a chain of circumstances from which the ultimate fact required to be established is reasonably and naturally inferable. Helland v.Bridenstine, 55 Wn. 470, 104 P. 626; Jordan v. Skinner,187 Wn. 617, 60 P.2d 697. From the facts stated, which the jury had a right to find, there is created a chain of circumstances from which the jury had a right to infer negligence.
"We have not overlooked the rule that, where, upon a given state of facts, physicians and surgeons of equal skill and learning disagree in their opinions as to what the proper treatment should have been, there is no question for the jury. It is enough if the treatment actually employed had the approval of at least a respectable minority of the medical profession and is *Page 680 recognized by such as a proper method. Dahl v. Wagner, 87 Wn. 492,151 P. 1079; Howatt v. Cartwright, 128 Wn. 343,222 P. 496. But that rule is not applicable to disputed questions of fact such as appear in this case." Gross v. Partlow,190 Wn. 489, 68 P.2d 1034.
See, also, Brant v. Sweet Clinic, 167 Wn. 166,8 P.2d 972.
Where a case is tried by jury, our power is exhausted when we find evidence or justifiable inferences from evidence upon which reasonable minds might reach different conclusions. Skarlatos v.Brice, 96 Wn. 205, 164 P. 939.
We cannot hold, as a matter of law, that defendant is entitled to judgment, where verdict for plaintiff is supported by evidence. Smith v. Mucklestone, 157 Wn. 699, 289 P. 526.
It is not the province of the supreme court to weigh the probative force and effect of the evidence, and the only matter open for review is the question whether there is substantial evidence to support the verdict. Champneys v. Irwin, 106 Wn. 438,180 P. 405.
Where there is evidence to support a verdict, the mere fact that, were we permitted to review it, we might reach a different conclusion, is no reason for disturbing the verdict. Burden v.Cropp, 7 Wn. 198, 34 P. 834; Rogers v. Spokane, 9 Wn. 168,37 P. 300; Bennett v. Seattle Elec. Co., 56 Wn. 407,105 P. 825; Melius v. Chicago, M. P.S.R. Co., 71 Wn. 64,127 P. 575; Moynahan v. Interstate Mining, Milling Development Co., 31 Wn. 417, 72 P. 81; Sibley v. Stetson Post Lumber Co., 110 Wn. 204, 188 P. 389; Sandanger v.Carlisle Packing Co., 112 Wn. 480, 192 P. 1005.
A physician, who attended Sylvia Daniels four days subsequent to the operation, testified that it is possible *Page 681 to sever the laryngeal nerve in a tonsillectomy; that the loss of the patient's voice contemporaneously with the tonsil operation was caused either by a growth on vocal cords, or by infection, or by severance of the nerve.
The defense to the action was that the growth on the vocal cords was the cause of the loss of the patient's voice. There is no positive evidence that there was any infection. The patient lost her voice when the operation was performed. The surgeon who performed the operation treated his patient continuously for almost a year in an endeavor to restore his patient's voice. He did not discover, until on or about eleven months after the tonsillectomy, any growth on the vocal cords, when he found a spot on the vocal cords. He then sent his patient to another surgeon.
The little girl testified that not until then, which was long subsequent to the operation on her throat, was she advised by a physician that there was a growth on her vocal cords. She further testified that one physician, who attended her four days after the operation to stop an hemorrhage, advised her that the loss of her voice could have been caused by severance of the vocal cord at the time of the tonsil operation.
Another physician testified there was no growth in the girl's throat, and that, in his opinion, the loss of the girl's voice was caused by the cutting or bruising or laceration of the laryngeal nerve. There were medical witnesses called by respondents who testified that, subsequent to the tonsillectomy, they examined the throat of Sylvia Daniels and saw the growth upon which the respondents relied as a defense to this action.
There was competent evidence that it is possible in a tonsil operation to so bruise or sever (pull so hard on the tonsil "as to separate the nerve from the muscles which control the voice") the laryngeal nerve (and *Page 682 that the operating surgeon did this) as to cause the loss of the patient's voice, but it is inexcusable on the part of the surgeon to sever that nerve.
It was a question of fact whether the loss of voice was caused by a growth on the cords, or by infection, or by cutting or severance of the nerve. Whether the growth was the cause of the loss of the patient's voice, the date — when the operation was performed or nearly a year thereafter — the growth would be of sufficient size to destroy the voice, and whether such growth was a matter of days or months — vital questions — were questions of fact as to which the evidence was in sharp conflict.
The jury found, on competent evidence — the credibility of the witnesses was for the jury — that the severance of the nerve was inexcusable, and that the laceration or cutting of the nerve was the cause of the loss of voice. For the injury sustained as a result of the operating surgeon's negligence, the patient is entitled to recover against the surgeon.
Doubtless, the trial court was of the view that substantial justice has not been done in the case at bar; therefore, granted a new trial. Not only is it the right of the trial court, but it is its duty, to grant a new trial when satisfied that substantial justice has not been done. We have no right to disturb the order granting the motion for a new trial.
HOLCOMB and BLAKE, JJ., concur with MILLARD, J. *Page 683