
    GEORGIANA YARRINGTON, BY CHARLES YARRINGTON, HER NEXT FRIEND, AND CHARLES YARRINGTON, INDIVIDUALLY, PLAINTIFFS, v. DR. WILLARD O. PITTENGER, DEFENDANT.
    Argued January 17, 1928
    Decided July 7, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the rule, McDermott, Enright & Carpenter.
    
    Contra, McCarthy & McTague.
    
   Per Curiam.

There was a verdict in this case of $5,000 for the plaintiff Georgiana Yarrington and a verdict of $1,200 for her father, Charles Yarrington. The defendant has a rule for a new trial, and on this rule we are urged to set aside the verdicts on two grounds — (1) that they are contrary to the weight of the evidence,'and (2) that the amounts are excessive. We think the first contention is well founded.

The action was for malpractice against the defendant, Pittenger, a dentist, on alleged negligence in permitting a portion of a tooth which he had extracted from the mouth of Georgiana Yarrington to pass down into her throat and lodge in her lung

The single element of want of care alleged against the defendant is the failure to use proper skill in performing his work, and as evidence in support of this charge the plaintiff’s mother was called as a witness and testified that no packings (a method of preventing such happening) were used by the defendant in preparation for and during the time that he was extracting the tooth. Against this testimony the defendant himself testified to the use of packings, and in this he was supported by a nurse in attendance at the time and a physician who administered the anesthetic. These witnesses also testified that the plaintiff’s mother was not in the room, nor did she have opportunity to observe what she claims she saw. That the packings used by the defendant were proper ones for the purpose was testified to by the defendant and by five other dentists,, while but a single witness testified to the contrary. Notwithstanding this state of the proofs, the jury found in favor of the plaintiffs.

The verdicts are so clearly against the weight of the evidence in the case that they cannot be sustained, and the rule will be made absolute.  