(dissenting). The location of the bed in which plaintiff was placed in defendant’s hospital had no causal relationsMp to the personal injuries for which she sues. Plaintiff did not fall from the bed through the window but left the bed, opened the. window, climbed over the wind deflector and fell from the outside window ledge. The accident happened two days after plaintiff underwent a minor operation for the cauterization of an anal fissure. The operation was performed by plaintiff’s personal physician and her postoperative care was likewise under Ms supervision. He prescribed the drugs usual in such cases.
*784The hospital had no notice or prior indication of any irrational behavior on the part of the patient suggesting that any restraints or special care were required. Her personal physician, who was in the best position to judge and who knew of the position of her bed in the hospital room, gave no instructions in this regard. In the absence of specific instructions by the attending physician or other indicated special care of the patient, the hospital was under no duty to restrain or guard the patient or place her bed away from a window. "Upon this state of facts, testimony as to general custom or usage, if competent at all (Garthe v. Ruppert, 264 N. Y. 290, 295, 296), was immaterial to show want of due care by the hospital. No actionable negligence was established against the hospital.
Accordingly, I dissent and vote to affirm the judgment entered on the jury’s verdict in favor of the defendant.
Breitel, Bastow and Boteih, JJ., concur in Per Curiam opinion; Dore, J., dissents and votes to affirm in opinion in which Peck, P. J., concurs.
Judgment reversed and a new trial ordered, with costs to the appellants to abide the event.