
    [No. 10669.
    Department Two.
    January 7, 1913.]
    M. A. Sherman, Respondent, v. E. Pittwood, Appellant.
    
    Appeal — Review—Findings. Findings in favor of the plaintiff upon conflicting evidence will not be disturbed on appeal, when supported by evidence, and there was not such preponderance in defendant’s favor as to entitle him to a dismissal.
    Appeal from a judgment of the superior court for Spokane county, Black, J., entered October 31, 1911, upon findings in favor of the plaintiff, in an action in tort, after a trial to the court.
    Affirmed.
    
      Morrill, Chester & Shuse, for appellant.
    
      Voorhees & Canfield and John Pattison, for respondent.
    
      
      Reported in 128 Pac. 1048.
    
   Morris, J.

Appellant is a dentist, and while he was doing some work upon respondent’s teeth, a small emery disc that he was using in shaping and grinding the teeth broke, and cut into and injured respondent’s tongue. Answering respondent’s claim of negligence in not taking proper precautions to prevent the injury complained of, appellant contended that he was using due care; that the disc was of standard make, and was being used in the manner employed by skilled dentists when respondent suddenly jerked his head, and his tongue coming in contact with the disc, broke it, and thus caused the injury complained of.

These contentions presented a simple question of fact to the court, who tried the case without a jury, and we can find no reason why the findings should be disturbed. There can be no question but that respondent’s evidence, if accepted by the court, was sufficient to sustain the findings, and they will be sustained, as we cannot say there was such a preponderance in appellant’s favor as to entitle him to a dismissal.

The judgment is affirmed.

Mount, C. J., Fullerton, Ellis, and Main, JJ., concur.  