(dissenting) — I see no distinction between the facts which we held insufficient to support a jury verdict for plaintiff in Roth v. Havens, Inc., 56 Wn.2d 393, 353 P.2d 159 (1960), and the facts adduced by the evidence in this case. The difference in the facts in these two cases is not of legal significance when applied to the principle of law here involved.
The liability of a hospital is properly delineated in Roth, supra, wherein we stated at page 396:
Certainly a hospital is not an insurer of a patient’s safety. McDonald v. Foster Memorial Hospital, 170 Cal. App. (2d) 85, 338 P. (2d) 607; Gray v. Carter, 100 Cal. App. (2d) 642, 224 P. (2d) 28; Sylvester v. Northwestern Hospital of Minneapolis, 236 Minn. 384, 53 N. W. (2d) 17; Simmons v. South Shore Hospital, 340 Ill. App. 153, 91 N. E. (2d) 135; Maki v. Murray Hospital, 91 Mont. 251, 7 P. (2d) 228; 41 C. J. S. 341, 349, 350, § 8.
Cochran v. Harrison Memorial Hospital, 42 Wn. (2d) 264, 254 P. (2d) 752, states the general standard of care as follows:
“ ‘It is not disputed that all the authorities hold that private hospitals owe to their patients such ordinary care and attention as the mental and physical condition of such patients reasonably requires. The law demands reasonable care, such care as a reasonable man would take under the circumstances existing, but no man is required to take measures against a danger which the circumstances as known to him do not suggest as likely to happen.’ ”
Respondent contends the fact that the nurse momentarily left respondent alone on the bed with the bed rails down constituted a breach of the duty of care owed the respondent. Such itself is not proof of negligence. There must be proof that respondent was in such a condition, *208which was known or should have, been known by the nurse, that reasonable care under the circumstances required raised bed rails.
. It would be only speculation to find that Mr. Osborn was in such physical or mental condition at 5 a.m. of the morning of his- fall to place the hospital employees on notice that it would be unsafe to leave Mr. Osborn’s bed rails down for his morning care. Incidentally, Mr. Osborn apparently did not fall out of. the bed, but fell after he had gotten out of bed and was proceeding to the bathroom.
The testimony quoted by the majority, when taken in immediate context with the related testimony of the quoted witness,1 does not tend to establish, directly or by any rea*209sonable inference, that Mr. Osborn was disoriented or confused at the time the attendant lowered the bed rails for morning care. The record does not otherwise contain evidence that the hospital’s normal operating procedures were unreasonable nor that the' condition of Mr. Osborn was such as to require the hospital to use more stringent supervision or procedures.
It is the function of the trial court presented with a challenge to the sufficiency of the evidence to determine whether the evidence, viewed most favorably to the plaintiff, will support a reasonable inference of negligence. The court properly ruled that the evidence did not meet this test. I would affirm his holding.
Wright, J., concurs with Neill, J.
“Q. Mrs. Martin, the records also indicate that at 5:30 a.m., that morning, which was after the accident, you gave Mr. Osborn another shot of Demerol, is that right? A. Right. Q. And was this in fact after the accident? A. Yes. Q. And about what time was the accident, approximately? A. It was right at 5:00 or around there. Q. Now, from your personal observation, this elderly gentleman sustained this fall, and you gave him Demerol shortly, within a maximum of half an hour afterwards, was he confused or disoriented at that time? A. No. Q. Was he alert? A. Yes. Q. Was he rational? A. Yes. Q. Did he make any statements to you? What did he tell you? A. When we asked him what had happened he told us that he - - - [Colloquy] A. I think it was prior to this, prior to me giving him the shot, that he told us — it’s when we had got him back into bed, we asked him what had happened, and he said that he’d gotten up - - - Me. Cunningham: Objection, she said “we.” The Court: Objection overruled. Q. (By Mr. Jeffers) Go ahead. A. He told us — we were all in the room still, he told us that he had gotten up to go to the bathroom and he fell. Q. And did you then, being the medicine nurse, did you ask him if he wanted Demerol, or did you decide he should have Demerol, or what were the circumstances? A. I questioned him regarding if he was having any pain from the fall. Q. What did he tell you? A. And he said — he had first said, no, when I asked him if his leg or hip or arm was hurt — he first said, no, and then he would say, yes, and then, no, and then, yes. And he couldn’t really decide whether he was having pain or not. Q. And is this why you decided to give him the Demerol? A. Yes. Partly because of the possibility of him actually having pain, and also it would tend to kind of settle him down from the reaction of the fall. Q. So, you, in fact, did give him 50 milligrams of Demerol at approximately 5:30? A. Right. Q. And he was alert at this time, as I understand it? A. Right. Q. He told you that he fell when he was getting up to go to the bathroom? A. He said he has gotten up to go to the bathroom and fell. Q. He was already up? A. Right. Q. He didn’t say anything about having fallen out of bed or rolled out of bed? A. No.”