¶1(dissenting in part): I cannot agree with the court’s holding that the trial court erred in overruling plaintiff s motion for a directed verdict on the issue of negligence, therefore I must respectfully dissent from paragraph 5(b) of the syllabus and the corresponding portions of the opinion. In effect, the majority holding is that the dropping of a dental reamer by defendant in plaintiff’s mouth, while performing a root canal procedure, constituted negligence as a matter of law. This conclusion is largely based upon what is said to be an admission of defendant and -application of the well-established principle that admissions made by a party in his testimony 'are the strongest kind of evidence and conclusive upon him if uncontradicted or unexplained. I agree, with the proposition as an abstract principle of law, but in my opinion it has been misapplied in the instant case.
¶2As pointed out in the majority opinion, the testimony of Dr. Davis, relied upon as an admission, came in the form of a response, to a question put to- him by plaintiff’s counsel on cross-examination.
¶3*593The question, framed by plaintiff’s counsel and the. response thereto is reproduced in the record as follows:
“Q. Doctor, I think you would agree with me or at least you testified in your deposition, it would not be good dental practice to drop a reamer in a patient’s throat?
“A. A reamer or anything else.”
¶4This is a hypothetical question framed in a fashion by plaintiff’s skillful counsel which he well knew would compel an affirmative answer. It is not an admission by Dr. Davis that he dropped the reamer in plaintiff’s throat, nor is there any evidence to that effect. The only direct evidence as to the precise looation o£ the reamer, after it was dropped, is the testimony of the dental assistant who testified:
“. . . I looked in the mouth myself. I saw the reamer on the back of her tongue. I watched him try for it with his fingers, and he asked me for a vacuum, and I handed it to him. . . .”
¶5The reamer was dropped in the patient’s mouth or on her tongue, and then swallowed. There is no evidence that Dr. Davis dropped the reamer down plaintiff’s throat. In my opinion, the response of Dr. Davis, to counsel’s hypothetical question cannot be made to serve as a basis for application of the binding admissions rule so as to support a directed verdict.
¶6Dr. Davis testified every time he entered a patient’s mouth there was a possibility that an instrument might be dropped. That such is not an uncommon occurrence, particularly in a root canal procedure, is borne out by tire faot that three oases involving the swallowing of dental reamers, where a rubber dam was not used, have reached appellate level courts in recent years. (Lipman v. Lustig, 346 Mass. 182, 190 N. E. 2d 675 [1963]; Cohen v. Weber, 36 N. Y. App. Div. 2d 921, 320 N. Y. S. 2d 759 [1971]; and DuFrene v. Faget, 260 So. 2d 76 [La. App.1972], writ den. 262 So. 2d 35 [La. 1972.]) In none of the oases referred to is it suggested that the dropping of a reamer or the failure, to employ a' rubber dam in a root canal procedure constituted negligence as a matter of law.
¶7Concerning the question whether failure to use a rubber dam was a departure from approved standards of practice in root canal procedures, Dr. Davis testified:
“. . . I had a cotton roll holder in her mouth, a small one. This isolates the area so that I can see better. There is less saliva in the area. ... In my opinion I did not depart from the standard, approved dental practice in this community or in any other community by not using the rubber dam during the procedure I used on October 30, 1972.”
¶8*594Dr. Swartzwelter, the plaintiffs expert, disputed defendant’s testimony on this point. Resolution of the conflict was for the. jury. A motion for directed verdict may be granted only when the court, after resolving all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling is-sought, finds that reasonable minds could not reach different conclusions on the question at issue. In my judgment the record before us does not warrant a holding of negligence as a matter of law.
¶9I agree with the majority that submission of contributory negligence on the record presented was erroneous and prejudicial to the extent that a new trial must be granted.
¶10I would reverse the .judgment below and direct a new trial on all issues.