
    (February 26, 1963)
    Felix Krauth, Appellant, v. Richmond Memorial Hospital, Respondent.
   Judgment affirmed, with costs to1 respondent. Concur — Breitel, J. P., Valente and Noonan, JJ.; Rabin and Stevens, JJ., dissent in dissenting memorandum by Rabin, J.: I dissent and ¡ vote to reverse the dismissal of the complaint and to reinstate the verdict of the jury in plaintiff’s favor. I agree with the trial court insofar as it concluded that whether the failure of the defendant hospital to take X rays under the circumstances constituted negligence was for the jury to determine. There was sufficient evidence introduced as to the normal standards of practice in a situation of this type as to raise an issue as to the propriety of the hospital’s treatment of the plaintiff. I disagree, however, with the trial court’s conclusion that the plaintiff was guilty of contributory negligence as a matter of law. Whether the plaintiff’s failure to act more expeditiously to obtain further medical attention constituted negligence was a question of fact that required resolution by the jury. The testimony of the plaintiff—which the jury could have, and apparently did credit — was that he was given no express or specific instructions as to follow-up medical treatment. A determination as to whether plaintiff's conduct constituted negligence could only be made in the light of his training and experience, his appreciation of the nature or the effect of the injury, his comprehension of the instructions given him by the hospital, and all the other surrounding circumstances. The determination being necessarily bottomed on such factual questions, it could only be made by a jury.  