Decedent, an 85-year old male, was admitted to defendant hospital early in August, 1968 and was transferred on August 16, 1968 to the Allen Calder Wing. On August 18, 1968 at about 11:45 p.m. he was found on the floor beside his bed. A nurse observed that one leg was shorter than the other, and decedent was complaining of pain in his hip area. An examination on August 19, 1968 revealed a fractured hip and an operation was performed on it on August 21, 1968. He died on August 28,1968; the immediate cause of death was given on the death certificate as myocardial insufficiency, and the fractured hip was given as a contributing cause.
An action for personal injuries and wrongful death was commenced in which plaintiff alleged that the defendant was negligent in failing to have foot side rails on the bed. The complaint was dismissed at the close of plaintiff’s case. In reviewing the *180determination of that motion, plaintiff is entitled to every reasonable inference that can be drawn from the facts (Philpot v. Brooklyn Baseball Club, 303 N. Y. 116), and since this is a death case, plaintiff is not held to as high a degree of proof as where an injured plaintiff is able to testify as to what occurred. (Cole v. Swagler, 308 N. Y. 325; Noseworthy v. City of New York, 298 N. Y. 76.) Plaintiff is deemed to have made a prima facie case if the evidence shows facts and conditions from which negligence on the part of defendant and proximate cause may reasonably be inferred. (Wragge v. Lizza Asphalt Constr. Co., 17 N Y 2d 313, 320.)
A hospital is liable for injuries resulting from a lack of side rails where it is put on notice that a patient’s condition requires them. (Gordon v. Harbor Hosp., 275 App. Div. 1047; Ranelli v. Society of N. Y. Hosp., 269 App. Div. 906, affd. 295 N. Y. 850; cf. Mossman v. Albany Medical Center, 34 A D 2d 263.)
I do not agree with the majority’s statement that the undisputed proof is that foot side rails were on the bed and up immediately before and after the accident. The proof established that all beds in the wing had head side rails and were constructed so that foot side rails could be put on. Notations were made in the hospital record on August 16 during the 3:00 p.m. to 11:00 p.m. shift, and during the shift that started at 11:00 p.m. that decedent was “ confused ”. Between 5:30 a.m. and 7:00 a.m. on August 18, notations were made that decedent was “ Very confused. Bestless at times. Needs careful and constant observation. Tried to get out of bed times one early in the shift and again early in the A.M. Patient stating that he did not want to oversleep and miss breakfast ’ ’ and that ‘‘ He needs order for side rails at bottom of bed for his own safety.” There w;as testimony that foot side rails had to be put on with a wrench but no one testified to their being put on the bed, and there was nothing in the hospital records showing such installation.
Several nurses testified fhat they could not recall whether there were foot side rails on decedent’s bed at the time of the accident. One of them specifically recalled going to his room immediately after the fall, and that she saw top side rails on the bed but did not recall seeing foot side rails. One nurse testified that there were foot side rails on the bed. Beference is made by the majority to an incident report to support this witness’ testimony concerning fóot side rails. While it indicates that side rails were up, the number of side rails is not given and there is nothing to show that foot rails were on the bed. This witness also testified that she was sure foot side rails were up *181because this was one of the things she checked on her rounds, but this conflicts with the testimony of the other nurses that not all beds were equipped with foot side rails. Further, she testified that when decedent was found, his legs were under the bed and his head and shoulders were resting on it. If foot side rails were up, it is difficult to see how decedent could have been in this position.
The jury may have rejected the testimony of this witness and inferred that this 85-year-old man, who weighed but 126 pounds and was in the hospital to learn to use a walker, would not have been able to get out of the bed if foot side rails were attached to the bed and were in an “up ” position. I believe that while there was no positive evidence that foot side rails were lacking, there was circumstantial evidence that they were and that it was sufficient to establish a prima facie case (Spett v. President Monroe Bldg, & Mfg. Corp., 19 N Y 2d 203) and that, consequently, the plaintiff’s case presented questions that should have been passed on by the jury. (Thomas v. City of New York, 25 AD 2d 787.)
Marsh, Wither and Henry, JJ., concur with Del Vecchio, J. P.; Motile, J., dissents and votes to reverse the judgment and grant a new trial, in an opinion.
Judgment affirmed without costs.