This is аn action to recover $25,000 in damages for personal injuries. On the verdict of a jury judgment
At Omaha defendant conducts a hospital where medicinе and surgery are practiced. In one of the rooms there-is an X-ray, machine'operated by Dr. Keugle fоr defendant. Plaintiff,-who is a practicing physician, went to the X-ray room with, a patient, the little daughter of David Thimgаn, to get a radiograph of the child’s head. Thimgan sat oil a chair in front of the X-ray machine with his daughter on his laр. While they were in the position thus indicated, plaintiff attempted to comply with a request of the operator to hold the child’s head, plaintiff’s own head at the time being near the wires which carry the electric currеnts to the X-ray tubes. After the-electricity .had been applied to the wires plaintiff fell to the floor, breaking his lеft leg. Defendant is charged with negligence in placing1 plaintiff where his body made a short circuit for escaрing electric currents; in failing to warn plaintiff of the dangers of Such close proximity to .the wires; .in failing to use an аvailable appliance to keep the wires a safe distance from .plaintiff; in failing to place the X-ray machine where the dangerous .wires would be vertical, thus keeping them at a safe distance; in failing to provide a competent and experienced X-ray operator. Defendant denied negligenсe on its part, and pleaded that it is an eleemosynary institution, and as such is not liable for. the negligence оf its servants; that plaintiff assumed the risk of contact with the electric currents, knowing the obvious, existing dangers; that plaintiff fell in an epileptic convulsion", his injury being the result.
Defendant argues that there should have been a non-suit' on the ground that defendant is an eleemosynary institution, and that as such it is not pecuniarily liable for the negligence оf its servants. This proposition "is based on the following principle of law:
“A charitable institution conducting a hosрital solely for philanthropic and benevolent purposes is not liable to inmates for the negligencе of nurses.” Duncan v.*345 Nebraska Sanitarium & Benevolent Ass’n,92 Neb. 162 , 41 L. R. A. n. s. 973.
In the case cited immunity from liability is limited to “inmates.” The rule thus announced has the support of precedent, but in a recent opinion of the supreme court of Virginia, after an extended analysis of the cases, it was held that the doctrine of non-liability to inmates did not extend to strangers, the modern theory being as follows:
“One whо at the request of a patient about to enter a hospital accompanies him to render reаsonably necessary assistance is an invitee of the hospital, to whom it owes the duty 'of exercising ordinary сare to have the premises,reasonably safe.” Hospital of St. Vincent of Paul v. Thompson, 51 L. R. A. n. s. 1025 (
In a recent., article on hospitals it was said:
“The theories of the immunity of a hospital from liability on thе ground of public policy and on the ground that the assets are a trust fund' having been very generally rejected by thе courts, and the doctrine of waiver by acceptance of benefits being applicable only to patients, the law has come to be that as to others not the recipient of the institution’s charity the rule оf responsibility for the- negligence of its servants and agents is applied as in cases of the ordinary business cоrporation.” 13 R. C. L. 948, sec. 12.
This view of the law conforms to correct standards of justice, and defeats the immunity plеaded in the answer of defendant.
One of the assignments of error challenges the admission of testimony that Dr. Keugle, the X-ray operator, told plaintiff he got too near the electric wire, and-that it carried 250,000 volts. It is argued that the statements of this character, if made, related to acts of negligence or to transactiоns occurring at an earlier date, and that they had no connection with the res gestee and were merely hearsay, оr were declarations made by an agént without authority to bind his principal. Should the judgment be reversed because
An instruction permitting the jury to recognizе as negligence the failure to provide a competent and experienced operator and the failure to provide for the safety of those around the X-ray machine is criticised as being without support in the evidénce. Negligence in both particulars may fairly be inferred from the testimony. Error prejudicial' to defendant has not been found' in the record.
Affirmed.