
    (February 21, 1950.)
    Hannah Grace, Appellant, v. Manhattan Eye, Ear and Throat Hospital, Respondent.
   Van Voorhis, J.

(dissenting). I vote to reverse the judgment appealed from and to grant a new trial upon the ground that there was ample evidence that for a long while defendant knew or should have known that plaintiff was throwing herself around in bed in a stupefied condition, and that she was liable to fall out of bed upon the floor and be injured. Making observations of that nature, and using ordinary common sense to avert the consequences of a simple and manifest danger, does not require the performance of a medical act. The trial court erred in removing from the jury the question of defendant’s negligence in this regard, and in charging that defendant would be liable only if an order had been given by a physician to place sideboards on the bed.

Glennon, J. P., Cohn, Callahan and Shientag, JJ., concur in decision; Van Voorhis, J., dissents in opinion.

Judgment affirmed, with costs. No opinion.  