#### HAZEL LEE MITCHEM v. DR. W. D. JAMES et al.

(Filed 25 May, 1938.)

Physicians and Surgeons § 15e—

Nonsuit held properly granted in this action against physician for alleged malpractice in failing to properly set the hones in plaintiff’s broken leg.

Appeal by plaintiff from Phillips, J., at February Term, 1938, of BlCHMOND.

Civil action to recover damages for personal injury alleged to bave been caused by tbe wrongful act, neglect or default of tbe defendant.

Following an automobile accident on 23 March, 1935, tbe plaintiff was taken to tbe Hamlet Hospital with a broken leg. Dr. W. D. J ames attended her, set tbe bones, placed her leg in a plaster cast, and she left tbe hospital on 2 April. Plaintiff returned for treatment once a week for four or five weeks thereafter.

On 26 February, 1936, tbe plaintiff bad tbe bones of her leg refrae-tured and reset at tbe North Carolina Orthopedic Hospital, Gastonia, N. C. Dr. W. M. Boberts, who performed tbis operation, testified for tbe plaintiff as follows: “I could not say that any physician bad improperly treated her. ■. . .. She bad what we call a mal-union. I found tbis mal-union and corrected it. ... I would not say that a physician bad improperly set it and I would bave no opinion as to whether it was properly set. . . . It is a rare thing that we get a perfect juncture of two bones. I won’t say we don’t strive "for it, but if we do not get it it doesn’t disturb us.” Tbe doctor further testified that tbe plaintiff bad a slight natural bow in tbe other leg — not enough to call her bow-legged — and for tbis reason be did not try to get tbe injured one straight, and that her injured leg is just about as good now as tbe other one. She walks with a slight limp.

From judgment of nonsuit entered at tbe close of plaintiff’s evidence, she appeals, assigning error.

Seawell ■& Seawell for plaintiff, appellant.

U. L. Spence for defendants, appellees.

*674Pee, Curiam.

We agree witb tbe trial court that if plaintiff’s own

expert witness cannot say she was improperly treated and has no opinion as to whether the broken bones were properly set, the evidence is not such as to require its submission to the jury. The case is not unlike Ferguson v. Glenn, 201 N. C., 128, 159 S. E., 5.

Affirmed.