1. A mere scintilla of evidence is not enough to require the
submission of an issue to the jury in the Supreme Court of the
District of Columbia. P. 281 U. S.
2. Upon a motion for a peremptory instruction, the question is
not whether there is literally no evidence, but whether there is
Page 281 U. S. 91
upon which a jury can properly find a verdict for the party
producing it, upon whom the onus of proof is imposed. P.
281 U. S.
3. In determining a motion by the defendant for a peremptory
instruction, the court assumes that the evidence for the plaintiff
proves all that it reasonably may be found sufficient to establish
and that, from such facts, there should be drawn in favor of the
plaintiff all the inferences that fairly are deducible from them.
P. 281 U. S.
4. Where uncertainty as to the existence of negligence arises
from a conflict in the testimony or because, the facts being
undisputed, fair-minded men will honestly draw different
conclusions from them, the question is not one of law, but of fact,
to be settled by the jury. P. 281 U. S.
5. In an action for personal injuries due to negligence, the
burden is on the plaintiff to establish the negligence and the
injury alleged, and, if the evidence fails adequately to support
either element, the defendant's motion for a peremptory instruction
should be granted. P. 281 U. S.
6. Plaintiff's evidence examined
and found sufficient
to justify a finding by the jury that the defendant, while treating
her as her physician, negligently put some harmful fluid into her
ears, causing her pain and injury. P. 281 U. S.
7. Upon a review by certiorari, this Court is not called on to
consider any question not raised by the petition for the writ. P.
281 U. S. 98
30 F.2d 467 affirmed.
Certiorari, 279 U.S. 828, to a judgment of the Court of Appeals
of the District of Columbia affirming a judgment of the Supreme
Court of the District for the plaintiff in an action for personal
MR. JUSTICE BUTLER delivered the opinion of the Court.
Respondent brought this action in the Supreme Court of the
District of Columbia to recover damages from petitioner,
Page 281 U. S. 92
a practicing physician, for injuries claimed to have been caused
by his negligence while treating her. Her complaint is that he put
into her ears some tissue-destroying liquid, which for brevity we
shall refer to as acid, and thereby injured the drums and other
parts of her ears. The jury returned a verdict for the plaintiff,
and the judgment thereon was affirmed in the court of appeals. 30
At the close of all the evidence, defendant moved the court to
direct the jury to return a verdict in his favor. He maintained
that the evidence failed to show that plaintiff was injured by the
negligence alleged, and that it left the cause of her injury in the
realm of conjecture. The motion was denied. Defendant sought
reversal on that ground. And that is the only ruling of which
complaint was made in the petition for this writ.
An opinion written by the chief justice of the court of appeals
held that the motion accepted as true plaintiff's evidence,
together with all inferences reasonably deducible from it, and that
the motion could be granted only when all reasonable men could
"draw but one conclusion from it, and that conclusion utterly
opposed to the plaintiff's right to recover." He cited Railroad
Co. v. Carrington,
3 App.D.C. 101, 108; Warthen v.
5 App.D.C. 167, 173; Adams v. Railroad Co.,
9 App.D.C. 26, 30; Glaria v. Washington Southern R. Co.,
30 App.D.C. 559, 563; Catholic University v. Waggaman,
App.D.C. 307, 320, and Chesapeake Beach R. Co. v. Brez,
App.D.C. 58, 69.
There was a concurring opinion by one of the associate justices
and dissent by the other. The concurring justice held that, under
the strict rule adopted in that court, there was sufficient
evidence to carry the case to the jury. He said (p. 470):
"It is a mere travesty to say that the court is bound to send
the case to the jury if there is any evidence tending to support
the contention of the plaintiff, and shut its eyes to the justice
or injustice of a verdict resting upon such a flimsy basis. It is
my fixed opinion, as
Page 281 U. S. 93
expressed on many occasions, that the rule established in the
decisions referred to, and in many other decisions of this court,
is too strict, and should be modified to the extent of confiding in
the court the power to determine whether or not the evidence is
sufficient to raise a reasonable issue of fact, capable of
supporting a verdict that will meet the substantial ends of
justice. I trust that such a rule of procedure may yet be adopted
by the unanimous concurrence of the justices of this court as will
lift the trial justice in this district from a mere automaton to
the exercise of his lawful and proper judicial function of seeing
that cases are submitted to juries in accordance with such lawful
rules of procedure as will elicit verdicts based upon substantial
issues of fact, rather than mere caprice and sympathy."
The dissenting justice found in the evidence "no basis whatever
for the verdict and judgment."
"When, on the trial of the issues of fact in an action at law
before a federal court and a jury, the evidence, with all the
inferences that justifiably could be drawn from it, does not
constitute a sufficient basis for a verdict for the plaintiff or
the defendant, as the case may be, so that such a verdict, if
returned, would have to be set aside, the court may and should
direct a verdict for the other party."
Slocum v. New York Life Insurance Co., 228 U.
, 228 U. S. 369
Page 281 U. S. 94
A mere scintilla of evidence is not enough to require the
submission of an issue to the jury. The decisions establish a more
"that in every case, before the evidence is left to the jury,
there is a preliminary question for the judge, not whether there is
literally no evidence, but whether there is any upon which a jury
can properly proceed to find a verdict for the party producing it,
upon whom the onus of proof is imposed."
Improvement Co. v.
14 Wall. 442, 81 U. S. 448
22 Wall. 116, 89 U. S.
Issues that depend on the credibility of witnesses, and the
effect or weight of evidence, are to be decided by the jury. And,
in determining a motion of either party for a peremptory
instruction, the court assumes that the evidence for the opposing
party proves all that it reasonably may be found sufficient to
establish, and that from such facts there should be drawn in favor
of the latter all the inferences that fairly are deducible from
them. Texas & Pacific Ry. Co. v. Cox, 145 U.
, 145 U. S. 606
Gardner v. Michigan Central Railroad, 150 U.
, 150 U. S. 360
Baltimore & Ohio R. Co. v. Groeger, 266 U.
, 266 U. S. 524
266 U. S. 527
Where uncertainty as to the existence of negligence arises from a
conflict in the testimony or because, the facts being undisputed,
fair-minded men will honestly draw different conclusions from them,
the question is not one of law, but of fact, to be settled by the
jury. Richmond & Danville Railroad v. Powers,
149 U. S. 43
149 U. S.
Where the evidence upon any issue is all on one side or so
overwhelmingly on one side as to leave no room to doubt what the
fact is, the court should give a peremptory instruction to the
jury. People's Saving Bank v. Bates, 120 U.
, 120 U. S. 562
Southern Pacific Co. v. Pool, 160 U.
, 160 U. S.
"When a plaintiff produces evidence that is consistent with an
hypothesis that the defendant is not negligent, and also with one
that he is, his proof tends to establish neither."
Ewing v. Goode
Page 281 U. S. 95
Circuit Judge) 78 F. 442, 444. See Patton v. Texas &
Pacific Railway Co., 179 U. S. 658
179 U. S. 663
New York Central R. Co. v. Ambrose, 280 U.
The burden was on plaintiff to establish the negligence and
injury alleged, and, if the evidence failed adequately to support
either element, defendant's motion should have been granted. We
need not consider whether the opinion written by the Chief Justice
could be sustained if it stood alone. The concurrence was essential
to the judgment. The concurring opinion rests upon the conception
that the rule stated by the Chief Justice required denial of
defendant's motion if plaintiff's claims were supported by any
evidence, however slight. That is not the rule applied in federal
courts. But it does follow that a verdict should have been directed
for the defendant. It remains to be considered whether, having
regard to the applicable rules established by the decisions of this
Court, the evidence was sufficient to warrant a finding by the jury
that defendant was negligent as charged, and thereby injured
It is not claimed by plaintiff that defendant knowingly put acid
in her ears, but that he negligently did so while intending to
apply oil. She gave testimony that tends to show the following
facts: prior to defendant's treatment, her hearing was good and she
never had any disease or injury in or about either ear. She first
consulted defendant on Saturday, October 21, 1922. He treated her
throat. On the following Monday, defendant told her that there was
something wrong with her nose, and that mouth breathing had made
her throat sore. He treated her nose. On Wednesday, she told
defendant she had some cold, and felt wax or something in her right
ear. He examined it and said there was nothing wrong. She repeated
that she felt wax in it. He then said that he would put some
mineral oil in her ears. There were several small white bottles and
a dropper on a cabinet in his
Page 281 U. S. 96
office. He took the dropper from one of the bottles and put some
liquid in her right ear. She immediately suffered much pain, became
dizzy and heard great noises in that ear. He then put some of the
liquid in her left ear. She experienced the same sensations, became
very ill, and lost control of her body. Other evidence shows that
she went or was taken to a bed in defendant's house, and there
remained for some hours and until a friend came and took her to her
There was testimony given by plaintiff's mother and sister that,
up to the time defendant treated her ears, plaintiff's hearing was
good; that she never had any disease or injury of the ears; that,
when she was brought from defendant's office, she was very ill,
apparently suffered much pain, remained in bed for about two days,
and was deaf. On the Friday following defendant's last treatment
she was taken to Dr. Patten, a specialist. He treated her daily for
some months and two or three times a week until October, 1926. Then
Dr. Morgan treated her twice a week until the time of the trial.
Neither Dr. Patten nor Dr. Morgan testified at the trial. The
record shows that the former could not be called, but it is silent
as to the latter.
In 1923, Dr. Crisp, treating her for something else, casually
examined her ears. He found the drum of the right ear broken, and
that of the left ear inflamed. In 1925, after the commencement of
this action, at the request of the defendant, Dr. Allen was
permitted to examine the plaintiff. He found both eardrums
retracted and a perforation in the right, but none in the left.
Early in 1927, in preparation for the trial, plaintiff had Dr. Gill
examine her ears. He found practically all of the right and about
half of the left drum gone, and that she had one-third hearing in
the right and two-fifths in the left ear. He gave testimony to the
effect that, if applied
Page 281 U. S. 97
to them, acid would injure or destroy eardrums and would cause
pain and possibly other sensations like those which plaintiff
testified she suffered at the time of the treatment.
Defendant testified plaintiff told him her hearing had become
impaired and that her ears had been treated. He found both eardrums
perforated. On her last visit, she was nauseated and complained of
dizziness and roaring in her head. He dropped mineral oil into her
ears with a dropper to close up the external ears in order to
prevent noise from penetrating into the middle ears. The noise
subsided, she became composed, went to a bed in his house, and
remained until taken home by a friend. He denied that he put acid
in her ears, and testified that he never had any in his office.
The evidence shows that, while difficult to do, it would be
possible by means of a dropper to apply acid to eardrums without
allowing it to come into contact with other tissues. There was no
scar or anything to indicate that acid had touched any part of the
canal leading to either eardrum. Plainly it would have been
impossible for defendant to have closed the external ears without
allowing the liquid used for that purpose to touch the canal
tissue. But plaintiff was not required specifically to show what
defendant did put in her ear, or that the treatment destroyed
either of her eardrums or made her deaf. If the evidence was
sufficient to justify a finding that defendant negligently put a
harmful fluid in her ears, causing her pain and injury, the motion
was properly denied.
As the credibility of witnesses and the weight to be given to
their testimony are for the jury, plaintiff's testimony as to the
treatment and immediate effect upon her and the testimony of others
as to her condition shortly afterwards constituted sufficient
evidence to warrant a finding that, instead of oil defendant
negligently put some
Page 281 U. S. 98
harmful liquid into her ears, thereby causing her pain,
suffering, and some injury in and about her ears. It was not
necessary for the trial court in passing upon the motion to
determine, and we need not consider, whether under the rules laid
down in the decisions of this Court, the evidence was sufficient to
warrant a finding that the perforation of either eardrum or
permanent deafness resulted from defendant's treatment.
Defendant seeks reversal on a number of grounds that were not
mentioned in his petition for the writ. But this Court is not
called on to consider any question not raised by the petition.
Webster Co. v. Splitedorf Co., 264 U.
, 264 U. S.
* And see Phoenix Ins. Co. v. Doster, 106 U. S.
, 106 U. S. 32
Montclair v. Dana, 107 U. S. 162
107 U. S. 163
People's Savings Bank v. Bates, 120 U.
, 120 U. S.
-562; North Penn. Railroad v. Commercial
Bank, 123 U. S. 727
123 U. S. 733
Kane v. Northern Central Railway, 128 U. S.
, 128 U. S. 94
Delaware, etc., Railroad v. Converse, 139 U.
, 139 U. S. 472
Elliott v. Chicago, Milwaukee, etc., Railway, 150 U.
; Union Pacific Ry. Co. v. McDonald,
152 U. S. 262
152 U. S. 283
McGuire v. Blount, 199 U. S. 142
199 U. S. 148
Empire state Cattle Co. v. Atchison Ry. Co., 210 U. S.
, 210 U. S. 10
Delk v. St. Louis & San Francisco R. Co., 220 U.
, 220 U. S. 587
Baltimore & Ohio R. Co. v. Groeger, 266 U.
, 266 U. S. 524
Chicago, M. & St. P. Ry. Co. v. Coogan, 271 U.
, 271 U. S. 478
St. Louis-San Francisco Ry. v. Mills, 271 U.
, 271 U. S.
-348; New York Central R. Co. v. Ambrose,
280 U. S. 486