{
  "id": 8549638,
  "name": "CELESTIA S. SMITH v. DR. JOHN W. FOUST and THE NALLE CLINIC COMPANY, a corporation",
  "name_abbreviation": "Smith v. Foust",
  "decision_date": "1970-08-05",
  "docket_number": "No. 7026SC250",
  "first_page": "264",
  "last_page": "265",
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      "type": "official",
      "cite": "9 N.C. App. 264"
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  "court": {
    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
  },
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    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
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      "category": "reporters:state_regional",
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      "category": "reporters:state_regional",
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      "year": 1905,
      "opinion_index": 0
    },
    {
      "cite": "140 N.C. 25",
      "category": "reporters:state",
      "reporter": "N.C.",
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      "year": 1905,
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  "last_updated": "2023-07-14T14:50:15.842675+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Campbell and Vaughn, JJ., concur."
    ],
    "parties": [
      "CELESTIA S. SMITH v. DR. JOHN W. FOUST and THE NALLE CLINIC COMPANY, a corporation"
    ],
    "opinions": [
      {
        "text": "Britt, J.\nPlaintiff first assigns as error the failure of the trial judge to instruct the jury with reference to the application of the doctrine of res ipsa loquitur.\nThe record reveals that plaintiff did not request instructions on this point. It discloses that after the trial judge completed his charge and held a brief conference with all attorneys appearing in the case he ordered that the record show that no request for further instructions was made by counsel for plaintiff or counsel for defendants. In Lyles v. Carbonating Co., 140 N.C. 25, 52 S.E. 233 (1905), our Supreme Court held, as stated in the second headnote of the opinion: \u201cAn exception that the court failed to explain fully to the jury the doctrine of res ipsa loquitur cannot be sustained, where the appellant failed to hand up a prayer for instruction to that effect.\u201d This ruling was followed in Isley v. Bridge Co., 141 N.C. 220, 53 S.E. 841 (1906). The assignment of error is overruled. We do not hold, or even imply, that the instruction plaintiff now contends for should have been given if requested; we hold only that in view of the cited cases, in the absence of request, plaintiff was not entitled to the instructions.\nPlaintiff\u2019s other assignment of error is to the failure of the trial judge to grant plaintiff\u2019s motion to set the verdict aside as being contrary to the greater weight of the evidence. Plaintiff concedes that it is well settled in this jurisdiction that such motion is addressed to the discretion of the trial court and its refusal to grant the motion is not appealable in the absence of manifest abuse of discretion. 7 Strong, N.C. Index 2d, Trial, \u00a7 51, p. 369. We hold that no abuse of discretion is shown in this case, therefore, the assignment of error is overruled.\nAlthough plaintiff sustained an unfortunate injury, determination of the question of negligence was for the jury and in a trial free from prejudicial error it resolved the issue against her.\nNo error.\nCampbell and Vaughn, JJ., concur.",
        "type": "majority",
        "author": "Britt, J."
      }
    ],
    "attorneys": [
      "Bailey & Davis by Gary A. Davis for plaintiff appellant.",
      "Carpenter, Golding, Crews & Meekins by John G. Golding and James R. Carpenter for defendant appellees."
    ],
    "corrections": "",
    "head_matter": "CELESTIA S. SMITH v. DR. JOHN W. FOUST and THE NALLE CLINIC COMPANY, a corporation\nNo. 7026SC250\n(Filed 5 August 1970)\n1. Negligence \u00a7 31; Physicians and Surgeons \u00a7 16\u2014 malpractice action \u2014 res ipsa loquitur \u2014 instructions\nFailure of the trial court in a malpractice action to instruct the jury on the doctrine of res ipsa loquitur was not erroneous where plaintiff made no request for such instruction.\n2. Trial \u00a7 51\u2014 setting aside verdict in discretion of court \u2014 review\nMotion to set the verdict aside as being contrary to the greater weight of the evidence is addressed to the discretion of the trial court, whose refusal to grant the motion is not appealable in the absence of manifest abuse of discretion.\nAppeal by plaintiff from Anglin, /., 1 December 1969 Schedule \u201cB\u201d Civil Session, Mecklenburg Superior Court.\nPlaintiff appeals from a jury verdict that defendants were not negligent in her malpractice action against defendant Foust, who performed a tonsillectomy upon her, and his then employer, the Nalle Clinic Company.\nBailey & Davis by Gary A. Davis for plaintiff appellant.\nCarpenter, Golding, Crews & Meekins by John G. Golding and James R. Carpenter for defendant appellees."
  },
  "file_name": "0264-01",
  "first_page_order": 288,
  "last_page_order": 289
}