1 dissent from views expressed, and think this case should be reversed and remanded for a new trial. I cannot agree that, the injuries complained of are due to the acts of the injured man. The defendants pleaded contributory negligence on the part of the plaintiff and contended that neither the defendant corporation nor any employee thereof was guilty of negligence. It was the-duty of the defendants, nurses, and physicians, to anticipate danger. One of the witnesses, Dr. Pettinger, testified that after patients have been operated on for appendicitis “they kind of think some one is chasing them”; that after the accident he asked the plaintiff how he happened to go out of the window, and was told that the plaintiff thought some one was chasing him, and that he went through the window to get away from his imaginary pursuer. The defendants should neither be allowed to *319shift their responsibility by asserting contributory negligence on the part of the plaintiff, nor to relieve themselves of a plain violation of duty which was due the patient.
I think the court committed numerous errors in - giving their instructions to the [jury. It was an error to instruct the jury to exclude the testimony of one of the witnesses, Roy Van Eschen, on the ground that it was uncertain and indefinite. This should have been left for the jury to decide. I think the court again erred in placing the burden upon the plaintiff to show suicidal intent. The doctor had been informed of the condition of the plaintiff, and it was his duty to see that he was protected from injuring himself. It was an error to permit Dr. Murdy to shield himself by testifying that he used his best judgment, and then to instruct the jury that, if he did use his best judgment, neither he nor defendant hospital would be liable. It was an error to instruct the jury that hospital attendants are not required to anticipate that a patient who is delirious and possessed of delusions, but showing no tendency to self-destruction, would' throw himself out of a high window, and are thus not required to guard against such an act. The record clearly shows that plaintiff was in an irrational state of mind from Tuesday evening, January 27, to Saturday morning, March 1st, prior to the accident, which resulted in permanent injury to him. His conversation with one Jung on Thursday evening showed him to be in a delirious state of mind, and his physical condition indicated that there was something decidedly wrong with him. His face was flushed and his eyes were rolling.
These prejudicial instructions to the jury were so emphasized that the jury could not possibly do otherwise than find for the defendants.
In my opinion, the newly discovered evidence, in connection with the errors above cited, entitle plaintiff to a new trial.