Phillips v. Powell

SHENK, J.

This is an appeal from an order granting the defendants’ motion for a new trial.

The action is to recover damages for the alleged negligence and unskilfulness of the defendants in a surgical operation performed by them on the minor plaintiff. The operation is known as a tracheotomy and consists of the making of an incision in the trachea for the purpose of permitting air to reach the lungs of the patient. It is undisputed that the operation was performed upon the plaintiff, who ;was five years old, when he was suffering from laryngeal diphtheria, and that in the performance thereof the blade of the Bard-Parker instrument used to make the incision broke and became imbedded in the fleshy portion of the plaintiff’s neck and has since remained there in a vertical position and has become at least partially encysted. The operation was performed without an anesthetic, there being evidence that it would have been inadvisable to administer an anesthetic under the circumstances. The jury returned a verdict in favor of the plaintiff in the sum of twenty-five thousand dollars.

The order of the trial court granting the motion for a new trial does not specify the grounds on which the order was made. The motion was made upon all of the statutory grounds. In the' absence, however, of a statement in the order that the new trial was granted upon the ground of the insufficiency of the evidence to justify the verdict, it must be presumed on this appeal that the order was not made upon that ground. (Sec. 657, Code Civ. Proc.) Although we are thus precluded from a consideration of the sufficiency of the evidence to sustain the verdict unless it is insufficient in law and without material conflict, nevertheless we may not disturb the order if it can be upheld upon any other ground shown by the record.

(Read

v.

Pacific Electric Ry. Co., 185

Cal. 520, 521 [197 Pac. 791] ;

Biaggi

v.

Ramont,

189 Cal. 675, 681 [209 Pac. 892].) We can scarcely say on the record before us that there is no material conflict on any material point, and that the evidence therefore, as a matter of law, does not

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