(concurring): I agree that there was error in the Judge’s charge which required the setting aside of the verdict in favor of the defendant, and that there should be a new trial, if there is any basis at all in the record for charging the defendant with liability in negligence. The record before us indicates that there may be such basis. Whether or not sideboards were needed on the patient’s bed was, under the decisions, a question requiring the exercise of medical judgment. The sideboards having been ordered by the hospital physician, the carrying out *527of Ms order was an administrative act, negligence in the performance of which would subject the hospital to liability. The record before us would indicate that instructions for the sideboards were given by the hospital physician to the patient’s private nurse. That private nurse is not an employee of the hospital, but is under the supervision of the hospital so far as concerns her performance of administrative duties directed by the hospital’s physicians. Thus far the question comes down to this: Is there an issue of fact raised on this record as to whether or not the hospital was negligent in supervising the private nurse and seeing that the order of its physician for sideboards was properly carried out. The record indicates that an hour and three-quarters elapsed between the time when the doctor’s instructions were given to the private nurse and the time when it is alleged that the patient fell out of bed because the sideboards had not been put up. The question being one of reasonable supervision, I believe it should be held, as a matter of law, that the period of one and three-quarter hours which elapsed was insufficient to charge the hospital with liability.
However, there is testimony in the ease which, in my opinion, was sufficient to raise an issue for a jury to resolve. If the testimony of the daughter and the son of the deceased is accepted it would appear that the floor nurse of the hospital was informed that the deceased had told them that she had almost fallen out of bed the night of the 23d of August and that she definitely felt that sideboards should be put up; that the floor nurse said in substance “ In that case we certainly will put them up and I will see to it that an orderly gets the sideboards and attaches them to the bed.” This conversation is said to have taken place between eight-thirty and eight forty-five in the evening of August 24th, and the deceased is alleged to have fallen between ten forty-five and eleven that same evening. The floor nurse, having made the decision that sideboards- would be put up, the carrying out of that decision was an administrative function, and for any negligence in connection therewith the hospital would be liable. This undertaHng by the nurse imposed upon the hospital a responsibility to attach the sideboards which was primary in nature and not merely supervisory. Having committed itself through a responsible agent to act, the hospital could not unreasonably or negligently delay. Whether or not this delay of several hours constituted a failure on the part of the hospital to act within a reasonable time in attaching the sideboards presents a jury question. Although there are sharp *528questions of credibility presented, I vote for affirmance of the order below and for a new trial, but solely on the ground stated in this memorandum.
Dobe, J. P., and Cohk, J., concur with Yak Voorhis, J.; Callahak, J., concurs in result; Shientag, J., concurs in result in opinion.
Order unanimously affirmed, with $20 costs and disbursements to the respondent.