If, for the sake of argument, it be conceded that at any stage in these proceedings the doctrine of res ipsa loquitur found application to this particular case, it had performed its function, served its purpose and had ceased to apply as soon as such presumption had been rebutted and overcome by the testimony of witnesses on behalf of the defendants, who, in detail thoroughly explained all of the facts and circumstances under which the unfortunate accident occurred. "The doctrine of `resipsa loquitur,' when applicable, is only a substitute for direct evidence, and rests upon necessity. It should be used only when the facts and demands of justice make its *Page 254 application essential, and when the necessary evidence is absent or not available. It has no application when all the facts attending an accident are disclosed in the evidence." (Heffter v. Northern States Power Co., 173 Minn. 215, 217 N.W. 102;Wright v. Elkhorn Con. Coal etc. Co., 182 Ky. 423,206 S.W. 634; Holt v. Ten Broeck, 134 Minn. 458, Ann. Cas. 1918E, 256, 159 N.W. 1073; Atkinson v. United Railroads, 71 Cal. App. 82,234 P. 863; Myers v. City of Independence, (Mo.)189 S.W. 816; Rost v. Roberts, 180 Wis. 207, 192 N.W. 38; Zoccolillo v. Oregon S.L.R. Co., 53 Utah, 39, 177 P. 201; Chiles v.Ft. Smith etc. Co., 139 Ark. 489, 8 A.L.R. 493, 216 S.W. 11;McCormack v. Standard Oil Co., 60 N.J.L. 243, 37 A. 617;Pittsburgh etc. R. Co. v. Arnott, 189 Ind. 350, 126 N.E. 13;Sand Springs Park v. Schrader, 82 Okla. 244, 22 A.L.R. 593,198 P. 983; Wardman v. Hanlon, 280 Fed. 988,52 App. D.C. 14.)
An examination of the cases of McGowan v. Nelson, 36 Mont. 67,92 P. 40, Lyon v. Chicago etc. Ry. Co., 50 Mont. 532,148 P. 386, and Nichols v. New York Life Ins. Co., 88 Mont. 132,292 P. 253, and other cases, discloses the fact that the courts refer indifferently to a presumption, to an inference, and to a prima facie case. In White v. Hines, 182 N.C. 275,109 S.E. 31, it is held that these various terms are used as practically synonymous. All courts, in line with this court, hold that this doctrine finds no application where all the facts attending the injury are disclosed by the evidence and nothing is left to inference. In such a state of the record no presumption can be indulged and the doctrine has no application. (Gibson v.International Trust Co., 177 Mass. 100, 52 L.R.A. 928,58 N.E. 278; Lawson v. Mobile Elec. Co., 204 Ala. 318, 85 So. 257;Cohen v. Farmers' Loan Trust Co., 70 Misc. Rep. 548,127 N Y Supp. 561; Maryland Casualty Co. v. Matson Nav. Co.,177 Cal. 610, 171 P. 427; Scellars v. Universal ServiceEverywhere, 68 Cal. App. 252, 228 P. 879.)
Here there was no testimony offered on behalf of plaintiff rebutting that of defendants. The testimony in their behalf conclusively establishes complete absence of any negligence *Page 255 whatsoever. If the plaintiff intended further to rely upon the presumption it then became obligatory upon him to offer testimony in rebuttal. (Scarpelli v. Washington Water Power Co.,63 Wash. 18, 114 P. 870.)
Whatever may be the rule in other jurisdictions, this court has held that even where res ipsa loquitur is applicable, plaintiff is not relieved from establishing something more than the mere happening of the injury. (Lyon v. Chicago, MilwaukeeRy. Co., supra.) Nor does the application of the doctrine affect the general rule that where the evidence is so clear and convincing that reasonable minds would not differ in their conclusions therefrom, the question of defendant's negligence is for the court and not for the jury. (Stott v. Southern SierrasPower Co., 47 Cal. App. 242, 190 P. 478.)
If a plaintiff alleges specific acts of negligence which caused the injury, as respondent did, there is no room for the application of the doctrine. (Midland Valley R. Co. v.Conner, 217 Fed. 956, 958, 133 C.C.A. 628; Roscoe v.Metropolitan St. R. Co., 202 Mo. 576, 101 S.W. 32; Pointer v.Mountain Ry. Const. Co., 269 Mo. 104, L.R.A. 1917B, 1091, 189 S.W. 805; Israel v. United Rys. Co., 172 Mo. App. 656,155 S.W. 1092; Gibler v. Quincy etc. R. Co., 148 Mo. App. 475,128 S.W. 791; Detrich v. Metropolitan St. R. Co.,143 Mo. App. 176, 127 S.W. 603; Beave v. St. Louis Transit Co.,212 Mo. 331, 111 S.W. 52.) "If the plaintiff possesses knowledge of the facts, and is able to plead them specifically and in detail the reason for the rule disappears and with it the rule itself." (Orcutt v. Century Bldg. Co., 201 Mo. 424, 443, 8 L.R.A. (n.s.) 929, 99 S.W. 1062; Byland v. E.I. Du Pont de NemoursPowder Co., 93 Kan. 288, L.R.A. 1915F, 1000, 144 P. 251;Root v. Cudahy Packing Co., 88 Kan. 413, 129 P. 147.)
No court, under facts similar to those herein, so far as a diligent search has discovered, holds that the doctrine of resipsa loquitur is applicable to this character of case, and this is true even where, by reason of the death of the patient and the total absence of eye-witnesses, it is speculative whether the patient jumped or fell and the circumstances are so meager as to leave the manner of death purely conjectural. *Page 256 The doctrine of res ipsa loquitur applies to the instant case. The knowledge of what happened to plaintiff when he sustained the injuries was peculiarly in the hands of the defendant, and was not and could not be known to the plaintiff. Under such circumstances, the presumption under the doctrine ofres ipsa loquitur applies. In other words, the circumstances afford reasonable evidence, in the absence of explanation, that the accident arose from want of ordinary care on the part of the defendant. (1 Thompson on Negligence, sec. 16; 4 Randall on Instructions, 4405; Soto v. Spring Valley Water Co., 39 Cal. App. 187,178 P. 305; Hardesty v. Largey Lumber Co.,34 Mont. 151, 86 P. 29; Meyer v. McNutt Hospital, 173 Cal. 156,159 P. 436.) The case of Meyer v. McNutt Hospital, supra, is practically on all-fours with the facts in the instant case. There the court said: "The doctrine of res ipsa loquitur is properly applied to the facts of this case. The patient was unconscious. Under its contract with her the defendant corporation owed her a duty of protection which was violated by the use of an instrumentality which produced the painful results which were made manifest when she came out from the influence of the anaesthetic. Proof of the accident carried with it the presumption of negligence. (Judson v. Giant Powder Co.,107 Cal. 549-555, 48 Am. St. Rep. 146, 29 L.R.A. 718, 40 P. 1020;Housel v. Pacific Elec. Ry. Co., 167 Cal. 245, Ann. Cas. 1915C, 665, 51 L.R.A. (n.s.) 1105, 139 P. 73.) And this is the rule whether the liability be ascribed to the carelessness of experienced nurses or to defendant's negligence in selecting nurses who were not competent. That is the true rule as announced in Adams v. University Hospital, 122 Mo. App. 675,99 S.W. 453, a case very like the one at bar." The defendant is presumed to know what was the negligence, if any, and the plaintiff from the circumstances does not and could not have known the cause of the negligence or what was the negligence. This idea is well illustrated *Page 257 in the case of Byrne v. Boadle, 2 Hurl. C. 722, 159 Eng. Reprint, 299, 301.
The presumption or doctrine of res ipsa loquitur takes the case to the jury where it applies, and it is to be considered by the jury irrespective of what the explanations of the defendant are. (3 Thompson on Negligence, sec. 2773; Johnson v. Chicago,M. St. P. Ry. Co., 52 Mont. 73, 155 P. 971; Freeman v.Chicago, M. St. P. Ry. Co., 52 Mont. 1, 2, 154 P. 912;Emerson v. Butte Elec. Ry. Co., 46 Mont. 454, 129 P. 319; 2 Jones on Evidence, 2d ed., sec. 518.)
The case of Lyon v. Chicago, M. St. P. Ry. Co., 50 Mont. 532,148 P. 386, is directly in line with the above authorities, even though the defendant is trying to place a different construction thereon. It does not hold that the doctrine of res ipsa loquitur does not apply where the defendant produces evidence in explanation of the accident, as contended by the defendant. The evidence which would eliminate the doctrine of res ipsa loquitur from a case, is evidence produced by the plaintiff. The explanation to rebut the presumption is merely effective to raise a question for the jury. All of the facts alleged in explanation are facts to be proved by the defendant. Thus the said plaintiff is expected to prove what he could be expected to know. The law does not require impossibilities. The reason for the law becomes the law.
Whatever way the injury happened the jury may believe the presumption in preference to the declaration of any number of witnesses. (Rev. Codes 1921, sec. 10672, subd. 2; 3 Thompson on Negligence, secs. 2773, 2774; Johnson v. Chicago, M. St. P.Ry. Co., and Freeman v. Chicago, M. St. P. Ry. Co., supra.) The defendant, Murray Hospital, a corporation, has appealed from an order, made after judgment in its favor, granting the plaintiff, Jalmar Maki, a new trial. *Page 258
Maki brought action against the hospital and Dr. D.K. Worden, of its medical staff, for damages for injuries sustained by him while a patient in the hospital. The complaint filed alleges that on March 20, 1928, Maki was admitted to the hospital, on order of Dr. Worden, for treatment for erysipelas present in his face; that a person so afflicted usually becomes delirious and violent; and that for a period of ten days after his admission to the hospital plaintiff was suffering from "mental derangement" and it became the duty of the defendants to keep him constantly attended by competent nurses and "restrained, guarded and under control and in a safe place," which facts were known, or should have been known, to defendants, but were unknown to plaintiff.
It is then alleged that on March 23, while delirious and violent and unable to care for himself or to know what he did, "through the carelessness and negligence and unskilfulness of the defendants and the * * * agents, servants and employees of said corporation, in failing to give to said plaintiff the care and attention which his condition required, and in failing to properly watch, restrain, control, guard and care for him," the defendants "negligently permitted and allowed" him to leave his bed and to fall from the third floor of the building to the ground, by reason of which fall he sustained serious and lasting injuries, described.
The answer admits that Maki was received in the hospital for treatment for erysipelas and placed in a room on the third floor of the hospital, and denies all other allegations mentioned above. Issue being joined, a jury trial was had.
The plaintiff's testimony was brief. Maki testified to his condition before he entered the hospital and that from then on, until he "woke up" ten days later in his battered and broken condition, he was "unconscious"; he showed his condition after his injury and at the time of the trial, but made no attempt to show in what manner he was permitted to fall or jump from the window of the third floor.
Defendant moved for judgment of nonsuit, which motion was denied, and then introduced testimony concerning the care *Page 259 given Maki in the hospital and the circumstances under which he received his injuries, as follows:
On March 20, 1928, Dr. Worden, of the hospital staff, found Maki suffering with a well-defined case of erysipelas manifested in his face. He had his patient taken to the hospital where he was assigned to a private room, as the disease is contagious, and assigned to him a special nurse who was required to be in constant attendance and to sleep in the room. Maki ran a temperature of 104 on the night of the 20th, but it receded somewhat thereafter and, according to the doctor, he remained conscious and ate heartily. Up to the morning of the 23d the patient showed no inclination to leave his bed or to become violent, though he was delirious at times.
Several outside physicians testified that, with such cases, it is not customary to place a guard over the patient, as it is not characteristic of erysipelas that the patient has delusions of persecution, fears of attack, or suicidal mania, and even though they show some signs of delirium they need no special attention, but admitted that a delirious patient might be more apt to jump from a window than one who was not delirious.
It is apparent, therefore, that in the ordinary course of the disease with which plaintiff was suffering and the even tenor of the conduct of the hospital, ordinary prudence would not dictate that the hospital staff take any unusual steps to guard and protect the patient from injury. However, what happened on the morning of March 23 was this: While the nurse in charge was in the bathroom washing up the dishes from Maki's breakfast tray, the "house painter" mounted a scaffold in the hall outside Maki's room and peered through the transom, whereupon Maki sprang from his bed, rushed into the bathroom, and told the nurse that a man was coming through the transom to shoot him. The nurse tried to quiet him by telling him that it was only the painter and at the same time tried to restrain him, but he struck her on the eye and stomach, broke from restraint, and jumped from the window. *Page 260
The plaintiff made no attempt to rebut defendants' testimony and, having rested after introducing certain rebuttal testimony, the defendants moved for a directed verdict. This motion was granted as to the individual defendant and denied as to the hospital; whereupon the jury was instructed and retired, and in due time returned a verdict for the defendant upon which judgment was entered.
Plaintiff moved for a new trial, specifying all of the grounds permitted by statute, and, after a hearing on the motion, the court granted a new trial without disclosing the grounds on which the order was made. We must consider the appeal from this order in the light of the following well-established rules:
The granting, or refusal to grant, a motion for a new trial[1, 2] lies within the sound discretion of the trial court, and its order thereon will be reversed only for manifest abuse of that discretion. (Stettheimer v. City of Butte, 60 Mont. 111,198 P. 455; Stephenson v. Home Ins. Co., 67 Mont. 193,214 P. 954, 955; Gould v. Lynn, 88 Mont. 501, 293 P. 968.)
An order, general in its terms, granting a new trial, will be upheld if it can be sustained on any ground stated in the motion therefor, and such an order will not be set aside as readily as an order denying a new trial, since the latter ends the case, whereas the former merely restores the parties to the position they occupied before the trial. (Northwestern Elec. E. Co. v.Leighton, 66 Mont. 529, 213 P. 1094; Loncar v. NationalUnion Fire Ins. Co., 84 Mont. 141, 274 P. 844.)
Among the grounds specified in the notice of motion and[3] recognized by the statute (sec. 9397, Rev. Codes 1921) is "error in law, occurring at the trial and excepted to" by the plaintiff, which includes error in instructions. (Kleinschmidt v. McDermott, 12 Mont. 309, 30 P. 393.)
It seems to be conceded that the new trial was granted because[4-7] the trial judge was persuaded that error was committed in refusing to instruct the jury that "the plaintiff is not required to show particularly what the specific act of negligence was which produced the accident, but is only required to show that the accident is one which would not ordinarily *Page 261 occur had reasonable or ordinary care been employed," and that "when the thing which causes injury is shown to be under the management of the defendant, and the accident is such as, in the ordinary course of things, does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of ordinary care," and in narrowing the issues by instructing the jury that "the only negligence relied upon by the plaintiff * * * is the alleged negligence * * * in failing to so restrain the plaintiff as to prevent his jumping from the window. * * *"
Having thus narrowed the issue, as to negligence, the court instructed the jury that the burden rested upon the plaintiff to prove this negligence by a preponderance of the evidence, and emphasized the fact by restatement in at least three instructions, coupled with the positive declaration that "in the absence of proof the presumption of law is that the defendant was not guilty of any negligence and the mere fact that the plaintiff was injured, does not itself create any presumption or inference of any negligence on the part of the defendant."
If this is an ordinary personal injury action and the plaintiff did rely solely upon alleged negligence in failing to restrain him from jumping from the window, the court correctly instructed the jury, and, as the plaintiff was unable to prove any negligence in this regard, the jury could have returned no other verdict than it did.
If the court adopted the correct theory in instructing the jury, it should have applied those rules of law at the close of plaintiff's case and granted defendants' motion for a nonsuit.
It is apparent from the record that plaintiff had no knowledge as to how he received his injuries, or in what manner the defendant hospital was negligent, if at all, in permitting him to reach a stage where he could be so injured, but he knew, as an ordinary reasoning being, that an unconscious patient in a hospital would not ordinarily receive such injuries unless those to whose care he had been committed were, in some manner, negligent. So handicapped by absolute ignorance *Page 262 of the facts which might disclose negligence, he alleged not only that he was permitted to fall from the upper story of the hospital, but to leave his bed theretofore, because, while he was in a condition wherein he was unable to care for himself, which condition extended from the time he entered the hospital until after he received his injuries, by reason of the carelessness, negligence, and unskilfulness of the agents, servants, and employees of the hospital, the defendants failed "to give to said plaintiff the care and attention which his condition required" and failed "to properly watch, control, guard and care for him." The allegations are as broad as they could be made and cover any act of omission or commission with reference to the duty owed plaintiff by the hospital from the time of his entry until the moment he jumped from the window. His proof was, likewise, merely general and there is nothing in the record to warrant the declaration that the plaintiff relied solely upon the failure of the defendant's agents to restrain him at the moment he did jump from the window; its duty attached long before that moment. The instructions, therefore, did not correctly state the issues. (Durfee v. Dorr, 123 Ark. 542, 186 S.W. 62; s.c.,131 Ark. 369, 199 S.W. 376; Williams v. Hospital Assn., 21 Cal. App. 359,131 P. 888.)
While it is necessary, in every personal injury case, toprove negligence, courts, generally, recognize the fact that persons are often injured in such manner, or through such instrumentalities, that it would be impossible to prove the facts showing negligence, and yet, by common knowledge and experience, it is clear that such injury would not have been sustained, ordinarily, had the responsible party not been negligent. Under such circumstances the application of the ordinary rules of evidence would work manifest injustice and render the maxim "for every wrong there is a remedy" (sec. 8752, Rev. Codes 1921) nugatory by denying one, patently entitled to damages, satisfaction merely because he is ignorant of facts peculiarly within the knowledge of the party who should, in all justice, pay them. Consequently, in order that justice may prevail, in *Page 263 such cases the courts, generally, apply the doctrine of res ipsaloquitur, or "the thing speaks for itself."
This doctrine is not an exception to the rule that the burden is on the plaintiff to prove actionable negligence, nor does it permit a recovery on mere proof of the injury; it merely "has the force of a disputable presumption of law and supplies the place of proof necessarily wanting" when the injured party cannot disclose the cause of his injury, but it is apparent prima facie that the accident would not ordinarily have happened had the defendant exercised ordinary care. (McGowan v. Nelson,36 Mont. 67, 92 P. 40; Lyon v. Chicago etc. Ry. Co., 50 Mont. 532,148 P. 386; Johnson v. Herring, 89 Mont. 420,300 P. 535.)
Further, this doctrine is not, as sometimes said, proof of negligence by a species of circumstantial evidence, the inference to be drawn by the jury from the probability of negligence resting, not upon evidence, direct or circumstantial, but upon a postulate from common experience that accidents of the kind involved do not ordinarily occur in the absence of negligence. (See lengthy note, L.R.A. 1917A, pp. 1-177.)
Mr. Justice Holmes has said: "`Res ipsa loquitur,' which is merely a short way of saying that, so far as the court can see, the jury, from their experience as men of the world, may be warranted in thinking that an accident of this particular kind commonly does not happen except in consequence of negligence, and that therefore there is a presumption of fact, in the absence of explanation or other evidence which the jury believe, that it happened in consequence of negligence in this case. Presumptions of fact, or those general propositions of experience which form the major premises or particular conclusions of this sort, usually are for the jury. The court ordinarily confines itself to considering whether it can say that there is no such presumption, or, in other words, that such accidents commonly are not due to negligence." (Graham v. Badger, 164 Mass. 42, 41 N.E. 61.)
Dean Wigmore, after stating the conditions of the rule, adds that "the particular force and justice of the presumption regarded *Page 264 as a rule throwing upon the party charged the duty of producing evidence consists in the circumstance that the chief evidence of the true cause, whether culpable or innocent, is practically accessible to him, but inaccessible to the injured party." (4 Wigmore on Evidence, sec. 2509.)
While the application of the doctrine is usually made in view of injury by machinery and instrumentalities under the exclusive control and operation of the defendant, from its very nature as a doctrine of necessity it should apply with equal force in cases wherein medical and nursing staffs take the place of machinery and may, through carelessness or lack of skill, inflict, or permit the infliction of, injury upon a patient who is thereafter in no position to say how he received his injuries. In such cases the doctrine of respondeat superior applies (Mulliner v.Evangelischer, etc., 144 Minn. 392, 175 N.W. 699), and the doctrine has been applied directly in hospital cases where it appeared that patients had been injured by the improper application of hot-water bottles, and the like, and particularly to negligence in failing to provide competent nurses, where the cause of the injury was unknown to the injured party. (Meyer v.McNutt Hospital, 173 Cal. 156, 159 P. 436; Adams v.University Hospital, 122 Mo. App. 675, 99 S.W. 453.)
In fact, a careful reading of the numerous cases in the books dealing with injuries received from jumping from the window of a hospital (for this is not a unique case) demonstrates that, while this doctrine is not discussed, the question of negligence could never have been submitted to the jury, or considered by the court, except by applying the principles of the doctrine. (SeeDavis v. Springfield Hospital, and cases therein considered,204 Mo. App. 626, 218 S.W. 696, 698, and notes 22 A.L.R. 347, and 39 A.L.R. 1431.) Thus, in Richardson v. Dumas, 106 Miss. 664,64 So. 459, 460, practically on all-fours with the case at bar, the court said: "The very nature of the occurrence, shows a prima facie case of negligence in failing to exercise due care in nursing and looking after the patient." The doctrine applies. *Page 265
It follows that the court erred in refusing the requested instructions and misled the jury by requiring the plaintiff to prove alleged negligence which is supplied by the doctrine (45 C.J. 1199), and in declaring that "the law presumes that the defendant was not guilty of any negligence." (Smith v.Hollander, 85 Cal. App. 535, 259 P. 958.)
As heretofore stated, the allegations of the complaint are broad enough to permit testimony as to any negligence in caring for and watching over the patient, as well as in "restraining him," and the applicable doctrine of res ipsa loquitur furnishes prima facie evidence of any such negligence, entitling the plaintiff to have his case go to the jury, unless the circumstances are so satisfactorily explained by the defendant, as to cause the presumption of negligence to "fade away in the face of contrary facts" (Welch v. All Persons, 85 Mont. 114,278 P. 110, 115), or point to freedom from negligence "with such certainty as to preclude any other reasonable hypothesis." (Nichols v. New York Life Ins. Co., 88 Mont. 132,292 P. 253, 255.)
In this state, a presumption, which is "a deduction which the law expressly directs to be made from particular facts" (sec. 10602, Rev. Codes 1921), is "indirect evidence" (sec. 10600, Id.), which can only be overcome by other evidence (sec. 10604, Id.), and the explanation of the circumstances given by the defendant must be satisfactory to overcome the prima facie case made, and, unless the evidence is such as to come within the rule in Nichols v. New York Life Ins. Co., above, the question is clearly for the jury.
Of course, if the court should have granted defendant's motion[8, 9] for a directed verdict, what was done thereafter would be immaterial. Such a motion is, in legal effect, a demurrer to the evidence (Barrett v. Shipley, 63 Mont. 152,206 P. 430), and on its consideration every fact must be deemed proven which the evidence tends to prove (Koerner v. Northern P.Ry. Co., 56 Mont. 511, 186 P. 337); consequently, no case should ever be withdrawn from the jury unless the conclusion necessarily follows, as matter of law, that recovery *Page 266 cannot be had upon any view which could reasonably be drawn from the facts which the evidence tends to prove. (Wagner v.Donald, 67 Mont. 114, 214 P. 1099; Long v. Davis,68 Mont. 85, 217 P. 667; Conway v. Monidah Trust, 52 Mont. 244,157 P. 178.) The fact that testimony is uncontradicted is not sufficient to warrant a directed verdict, where inferences to be drawn from the circumstances are open to different conclusions by reasonable men. (First Nat. Bank v. Wilson, 57 Mont. 384,188 P. 371; Ball v. Gussenhoven, 29 Mont. 321,74 P. 871.)
Here, the law provides the plaintiff with a case on which he is entitled to recover, unless the defendant explained away the presumed negligence. Let us, then, consider the explanation given, in the light of the foregoing strict rules governing the trial court in ruling on a motion for a directed verdict, remembering that the court denied the motion after having seen and heard the witnesses on the stand.
Dr. Worden, Maki's physician and one of the defendants, testified that he was "perhaps" better qualified by experience to testify concerning the disease with which his patient was suffering than were outside physicians. He testified, in effect, that erysipelas is but one of the toxic diseases in all of which delirium may result from fever and toxicity; that, while the mere fact that a patient has erysipelas does not lead a physician to apprehend that he will have "hallucinations, delusions or illusions, the three are part of the delirious stage; there are graduations of distinction between them, but the three of them make up the delirious stage." Speaking of such patients he said: "There are signs by which you can tell what they are likely to do, the higher the fever the more you expect delirium." The doctor explained the symptoms by which one experienced in handling delirious patients could tell when they might become violent, and testified that a nurse's competency to handle delirious patients depended upon her experience with such patients. He said that he thought the nurse in charge as "able to handle" a delirious patient as any nurse *Page 267 he knew of, but did not say that he knew whether or not she had ever had charge of a delirious patient.
The "nurse," Miss Dushchee, testified that, at the time she was assigned to take care of Maki, she was nineteen years old, a student nurse who had been in the hospital ten months; that it required three years as such student to become a nurse, and during her ten months in the hospital she had helped in nursing patients, some of them suffering with erysipelas, but this was her first "special," in which she had had full charge. She did not testify that she had ever helped with a delirious patient, or even seen one.
Thus we have evidence by the defendant from which the jury might determine that the nurse in charge was, under the doctor's testimony, incompetent to handle a delirious patient.
Maki became delirious for a short time in the early morning of March 22, which fact Miss Dushchee reported to Dr. Worden, who visited the patient that morning and twice during the day. On the morning of the 23d Maki again became delirious; he then labored under the delusion that the nurse had cut off his legs; he continued in that state from 3:30 or 4 until 5 A.M., when he went to sleep; at 6:30 his temperature was 102, and at 7:30 the nurse gave him the regular hospital breakfast tray, manifestly containing solid foods; she admitted that such foods generally raised a patient's temperature. His temperature was not taken at any time after 6:30. Thirty-five minutes later, the patient reached the violent stage of delirium, a condition in part induced, not by "hallucination" of pursuit, but by a man actually appearing at the transom over his door, and it is a fair deduction from the foregoing testimony that the solid food given him raised his temperature to a point where, had he been attended by a nurse experienced in the case of delirious patients, such a nurse would have observed those symptoms which indicate when such a patient is apt to become violent.
What, then, is the duty of a hospital toward its patients, and does the foregoing evidence so conclusively demonstrate a discharge of the duty that the court should have said, as a *Page 268 matter of law, that the prima facie case made was overcome? In determining this question we must bear in mind that the trial judge, who has the advantage of seeing and hearing the witnesses on the stand and of judging of their credibility from their demeanor, held the contrary.
A hospital conducted for private gain is not an insurer of its[10-14] patients against injury inflicted by themselves, but is only required to use ordinary and reasonable care and diligence in the treatment and care of patients; however, a patient is entitled to such reasonable care and attention for his safety as his mental and physical condition may require; the degree of such care should be in proportion to the physical and mental ailments of the patient rendering him unable to look after his own safety. (Hogan v. Clarksburg Hospital Co., 63 W. Va. 84, 59 S.E. 943; Tulsa Hospital Assn. v. Juby, 73 Okla. 243, 22 A.L.R. 333, 175 P. 519.) This rule has been qualified by limiting it to the "known" condition of the patient, and it is said that "the unbending rule that no one is required to guard against or take measures to avert that * * * which a reasonable person under the circumstances would not anticipate as likely to happen." (Davis v. Springfield Hospital, 204 Mo. App. 626,218 S.W. 696, 699; Torrey v. Riverside Sanitarium,163 Wis. 71, 157 N.W. 552.) We do not subscribe to the rule laid down inDurfee v. Dorr, above, which would, in effect, make the hospital an insurer against unforeseeable accident; the "unbending rule" above is undoubtedly correct, but the limitation of the application of the general rule to the "known" condition of the patient is too narrow.
It is the duty of a hospital to use reasonable care to employ only competent physicians and nurses (Tulsa Hospital Assn. v.Juby, above); the skill required of these must be such as is possessed by others similarly engaged in like communities. (Kirby's Admr. v. Berea College, 196 Ky. 353, 244 S.W. 775.) Those who by reason of affliction place themselves in the hands of the medical and nursing staffs of a hospital, and agree adequately to compensate the hospital for the care and attention *Page 269 required by their mental and physical condition, have a right to rely upon the performance of such duty, and it will not do to say that the hospital is relieved from liability merely by showing that those in charge of the patient did not know the conditions existing, regardless of what they should have known.
The correct rule is formulated into an instruction, which should be given in such cases, in Hignite's Admx. v.Louisville Sanitorium, (1928) 223 Ky. 497, 4 S.W.2d 407,409, which, paraphrased reads in part: "If the jury believes from the evidence that the * * * physicians or agents of defendant * * * discovered, or by the exercise of reasonable skill and care should have discovered, that his condition was such * * * at any time before" the accident "that it might reasonably be anticipated that he would" act as he did, "it was the duty of defendants to use that degree of care to have him watched or kept under observation to prevent him from doing so which ordinarily skillful, careful, and prudent persons engaged in caring for and treating persons in his condition would have used."
The question whether or not the defendant's explanation as to the circumstances under which Maki received his injuries was sufficient to overcome the prima facie case made by showing a full discharge of its duty imposed upon it by law, was clearly a jury question, under proper instruction from the court. It is so held in similar cases wherein the question of the sufficiency of the evidence to warrant the verdict and judgment was directly before the court, and not, as here, where the question is as to whether or not we can say on the cold record that the trial judge, who saw the witnesses on the stand and observed their demeanor while testifying, realizing that he had so misled the jury by his instructions that that body could not consider the evidence, was guilty of "manifest abuse of discretion" in granting plaintiff a new trial, so that the matter of defendant's liability can be determined by the triers of fact, in whom the jurisdiction to do so is reposed by our law. (See Richardson v.Dumas, above; Durfee v. Dorr, above; Broz v. HospitalAssn., 96 Neb. 648, L.R.A. 1915D, *Page 270 334, 148 N.W. 575; Wetzel v. Hospital Assn., 96 Neb. 636, Ann. Cas. 1915B, 1224, 148 N.W. 582; Ward v. Hospital,39 A.D. 624, 57 N.Y. Supp. 784; Smith v. Simpson,221 Mo. App. 550, 288 S.W. 69.)
Even in Davis v. Springfield Hospital, above, on which defendant places its chief reliance, the court held that plaintiff was entitled to have the jury consider one of the two probable methods by which he could have fallen from the upper story of the hospital to the ground.
In certain of the above cases the explanation made by the defendant made a stronger case in its favor than that presented here.
When the doctrine above announced is applicable, as here, the defendant must satisfy the members of the jury, not the court, that it has performed the duty which the law imposes on it, unless the proof is so clear that the minds of reasonable men cannot reach contrary conclusions thereon.
In view of Dr. Worden's testimony that a nurse's competency to "handle delirious patients depends on whether she has had experience with delirious patients," reasonable men may differ as to whether or not the defendant was negligent in not placing such a nurse in charge of Maki immediately on learning that he had become delirious on the morning of March 22.
In the light of the testimony of Miss Dushchee, such men may differ as to whether reasonable care was exercised in feeding this fever patient, or in instructing the nurse on the subject, when it appears that, within thirty minutes after eating from the "customary tray," the patient became violent.
Further, while the physicians testified as to the ordinary course of erysipelas cases and that one did not necessarily anticipate violence from one delirious, no attempt was made to show what, in medical experience, might be the effect on a patient whose mind is clouded by fever and delirium, of the sudden appearance of the face of a man at such an out of the way place as the transom over the door. It may be that it is well known that such an experience, particularly if the hall *Page 271 was fairly dark, would be sufficient to cause a patient predisposed to delirium to become violent. In the absence of proof to the contrary, the jury might have concluded that such was the case and that the agents and employees of the defendant were negligent in this regard.
When, therefore, realizing that the jury had been misinstructed and misled into believing that the presumption of law was that the defendant had not been guilty of any negligence and so, in effect, instructed that defendant should prevail in the admitted absence of evidence showing negligence and the refusal to instruct that the presumption or inference of negligence in the case took the place of this wanting proof, we cannot say that the trial court manifestly abused its discretion in granting the plaintiff the opportunity to have his case once tried, under our well-established rules governing our action on appeal from an order granting a new trial.
Order affirmed.
ASSOCIATE JUSTICES FORD and ANGSTMAN concur.