I dissent. In my opinion, the doctrine of res ipsa loquitur has no possible application in this case. The application of the doctrine as announced herein by the majority carries it far beyond the basic reason for the existence of the rule. The doctrine is based on necessity, raising an inference of negligence, by reason of the superior knowledge or position of a service or instrumentality under a person's management, direction, or control. It is generally applicable to machinery or other instrumentalities of the condition of which the manager thereof or person having the same under control is in better position than the person injured to know the cause of the accident. The obligation of a hospital is simply to provide ordinary care for the safety and care of its patients, and to hold the doctrine of res ipsa loquitur applicable in such a case as this, is to make it an insurer. If it did have possible application, then, under the settled law with respect thereto, it was so completely overcome by the uncontradicted evidence introduced by the defendants as to establish the nonliability of the hospital as a matter of law. If ever proper to be considered in this case, it was completely overcome and *Page 278 destroyed by the undisputed evidence of the defendants. The inference, if one was ever proper to have been drawn from the facts in this case, was so nullified by the defendants' proof as to entirely remove the doctrine from consideration as a matter of law.
Actionable negligence on the part of the defendants is by the plaintiff on his complaint predicated upon the alleged failure "to properly watch, restrain, control, guard and care for him while he was in" a "delirious condition, and by reason of such delirious condition, being unable to properly care for himself, [he was] carelessly and negligently permitted and allowed by said defendants to leave his bed and said room and to fall from the third floor or story of said building." By the evidence submitted in support of the complaint it appears that the defendant D.K. Worden, a physician, was called to see the plaintiff at the latter's rooming-house on the afternoon of March 20, 1928, diagnosed the plaintiff's illness as erysipelas, and after examining the patient said to him in effect that someone should be with him all of the time for a few days. That evening the plaintiff was admitted to the Murray Hospital and was assigned room numbered 300, in care of a nurse. He went to sleep and about ten days later, on April 1, 1928, found himself suffering from the injuries of which he complains.
In his case in chief no testimony whatever was offered in explanation of his fall from the window and resulting injuries of which he complains. He failed to establish a prima facie case. In my opinion, the motion interposed for a nonsuit was well taken and should have been granted. In defense the facts were disclosed, and therefrom it appears that everything reasonably possible or proper was done to guard, protect, and care for the patient. No violation of any obligation or duty resting upon the hospital has been shown. The hospital was not by law, custom, or regulation required to provide the patient with a graduate nurse or special attendant; yet it did provide him with a special nurse of ability. Miss Dushchee, the nurse in charge of Maki, was not a graduate nurse, but *Page 279 rather a nurse in training; she was nineteen years of age, weighed 135 pounds, and in the emergency did everything which possibly could have been done by the most experienced female graduate nurse. The court should have directed a verdict as to both of the defendants. Therefore, errors, if any, committed by the trial court in its instructions given to the jury are of no consequence.
It is fundamental that where the evidence does not show any negligence on the part of the defendant, there can be no recovery, no matter how free from negligence the plaintiff may have been. There certainly is no presumption of negligence arising merely because the plaintiff was upon the defendant's premises at the time of the accident, nor by reason of the mere fact that he was a patient within the hospital. The hospital cannot be held as an insurer in such cases, and no presumption of negligence is properly indulged in the absence of facts pleaded and established by some substantial evidence. The burden of proving negligence of the defendants by a preponderance of the evidence always rests upon the plaintiff. Where, as in the case before us, the evidence of both parties disproves the allegation of negligence, any possible presumption arising is completely overthrown, and the court should declare, as a matter of law, that the plaintiff has failed to establish his case. *Page 280