Marble v. Nicholas Senn Hospital Association

• Decision Date: 30 March 1918
• Docket Number: 19864
• Parties: ROBERT E. MARBLE, APPELLEE, v. NICHOLAS SENN HOSPITAL ASSOCIATION, APPELLANT
• Court: Nebraska Supreme Court

167 N.W. 208

102 Neb. 343

ROBERT E. MARBLE, APPELLEE, v. NICHOLAS SENN HOSPITAL ASSOCIATION, APPELLANT

No. 19864

Supreme Court of Nebraska

March 30, 1918

APPEAL from the district court for Douglas county: ALEXANDER C TROUP, JUDGE. Affirmed.

AFFIRMED.

Sullivan Rait & Thummel, for appellant.

Mahoney Kennedy, Holland & Horan, contra.

ROSE, J. SEDGWICK, J., not sitting.

OPINION

ROSE, J.

This is an action to recover $ 25,000 in damages for personal injuries. On the verdict of a jury judgment was rendered in favor of plaintiff for $ 8,500. Defendant has appealed.

At Omaha defendant conducts a hospital where medicine and surgery are practiced. In one of the rooms there is an X-ray machine operated by Dr. Keugle for defendant. Plaintiff, who is a practicing physician, went to the X-ray room with a patient, the little daughter of David Thimgan, to get a radiograph of the child's head. Thimgan sat on a chair in front of the X-ray machine with his daughter on his lap. 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 currents to the X-ray tubes. After the electricity had been applied to the wires plaintiff fell to the floor, breaking his left leg. Defendant is charged with negligence in placing plaintiff where his body made a short circuit for escaping electric currents; in failing to warn plaintiff of the dangers of such close proximity to the wires; in failing to use an available 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 negligence on its part, and pleaded that it is an eleemosynary institution, and as such is not liable for the negligence of 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 of its servants. This proposition is based on the following principle of law:

"A charitable institution conducting a hospital solely for philanthropic and benevolent purposes is not liable to inmates for the negligence of nurses." Duncan v. Nebraska Sanitarium & Benevolent Ass'n, 92 Neb. 162, 41 L. R. A. n. s. 973, 137 N.W. 1120.

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 who at the request of a patient about to enter a hospital accompanies him to render reasonably necessary assistance is an invitee of the hospital, to whom it owes the duty of exercising ordinary care to have the premises reasonably safe." Hospital of St. Vincent of Paul v. Thompson, 51 L. R. A. n. s. 1025 (116 Va. 101, 81 S.E. 13).

In a recent article on hospitals it was sad:

"The theories of the...