On August 16, 1968 the decedent was assigned to a room with an electrically controlled bed equipped for top and bottom side rails. A nurse on duty on August 17 from 11:00 p.m. to 7:00 a.m. testified, by referring to entries she made in the hospital record, that the patient was restless and confused as to time and place and that he tried twice to get out of bed. She also made this entry, “Needs order for rails at bottom of bed for his own safety.” Side rails are ordered by a doctor or by the supervisor if needed. No proof was offered to show whether a doctor or a supervisor ordered these rails; however, the undisputed proof is that the bottom rails were on the bed and up immediately before and after the accident.
The nurse on duty on August 18 from 7:00 a.m. to 3:00 p.m. made a notation in the hospital record that the patient was out of bed, sitting in a chair, had a quiet day and napped in the afternoon. She testified that he was at liberty to get out of bed when he chose to do so, that he might get up and get in a chair for 20 minutes, lie down for awhile, and then get up again.
The nurse on duty from 3:00 p.m. to 11:00 p.m. made a notation that the patient was out of bed in a chair and had a quiet evening.
*178The licensed practical nurse on duty from 11:00 p.m. to 7:00 a.m. testified that between 11:30 and 11:45, when she made the rounds and checked decedent’s room, the patient was in bed resting and she was positive that there were four side rails on the bed and that they were up ‘ ‘ because those were checked when we made our rounds ”. She found nothing unusual at that time. At 11:45 she was called to the patient’s room and saw him on the floor beside his bed. At that time all four side rails were up and she was sure that the bottom side rails were still up. She helped to lift the patient from the floor, put him in bed, and waited for orders from the supervisor. When asked whether she knew who had put the side rails on the bed she testified that ‘‘ that is usually done before 11:00 o ’clock at night ’ ’. Her written report of the incident shows that she ‘ ‘ found patient on floor with legs under bed, head and shoulders resting on bed ”, and that bed rails were present and up.
The assistant nurse on duty from 11:00 p.m. to 7:00 a.m. testified that she made the rounds with the practical nurse but did not remember that particular night.
The nurse referred to in the dissenting opinion as the one who recalled going to the patient’s room immediately after the fall was the supervisor on duty from 11:00 p.m. to 7:00 a.m. She testified that when she entered the patient’s room, after she had been notified of the incident, he was lying in bed complaining of pain in his hip. She could not recall “ whether there were or were not ’ ’ side rails at the bottom of the bed. Having entered the room after the patient had been removed from the floor and put in bed she, of course, could not dispute the testimony given by the practical nurse that the bottom rails were up when the patient was found on the floor.
The practical nurse, the assistant nurse, and the supervisor were the only nurses on duty at the time of the accident who testified at the trial.
The doctors who examined and treated decedent testified that they were unable to get any information or history of the occurrence from the patient.
We find no proof in the record that the bottom side rails were not put on the bed or were not up on the night in question. The only positive proof offered by plaintiff is the undisputed testimony of the practical nurse supported by her written report that they were on and up before and after the incident. No proof was offered as to how the patient got out of the bed.
Upon this record we conclude that plaintiff has failed to show how the accident happened or that defendant’s negligence was *179responsible for it. No issue of fact having been presented as to the number or position of the side rails, the trial court was justified in granting a nonsuit and dismissing the complaint at the close of plaintiff’s proof.
By no rational process could a jury find upon the proof presented that the proximate cause of the accident was a failure by defendant to furnish side rails. Insufficient evidence is, in the eye of the law, no evidence in the sense that there is none that ought reasonably to satisfy a jury (Blum v. Fresh Grown Preserve Corp., 292 N. Y. 241, 245).
We recognize that, in an action for wrongful death caused by accident and as to which there are no eyewitnesses, the plaintiff is not held to as high a degree of proof as in a case in which the injured person can testify to the accident. In such cases the proof may rest upon inferences from circumstantial evidence, but the evidence must be such that reasonable inferences therefrom in support of all the elements of the cause of action may be drawn (Cole v. Swagler, 308 N. Y. 325). The burden was on the plaintiff to produce evidence of negligence; it could not be inferred from the fact the accident happened, nor could it be left to guess, speculation, or surmise (Lahr v. Tirrill, 274 N. Y. 112). “ Where the evidence is capable of an interpretation which makes it equally consistent with the absence as with the presence of a wrongful act, that meaning must be ascribed which accords with its absence” (Digelormo v. Weil, 260 N. Y. 192, 199-200). The doctrine of res ipsa loquitur, urged for the first time on this appeal, is not applicable (Shanon v. State of New York, 29 A D 2d 1024).
The judgment should be affirmed.