De Graw v. Corning Hospital

— Judgment and order affirmed, with costs. All concur, except McCurn and Love, JJ., who dissent and vote for reversal and reinstatement of the verdict in the following memorandum: At the time of the accident, the infant plaintiff had not yet been delivered into the cutsody of the professional personnel who were to participate in the operation. It was reasonably to be anticipated that a five-year-old child left upon a narrow table unattended and without straps or other fastenings, waiting for the arrival of the operating-surgeon and his assistants, might fall and sustain injury. The record indicates that the hospital authorities had assigned the duty of protecting the infant from such a fall to an employee designated as a circulating nurse. That duty, whether *943undertaken by a nurse or by a lay person, was not o£ a professional nature nor any part of the medical treatment. It was one of the services performed by the hospital through its servants and agents in an administrative capacity and the doctrine of respondeat superior applies. (The judgment appealed from dismisses the complaint in a negligence action after setting aside the verdict in favor of plaintiff. The order granted defendant’s motion to set aside the verdict in favor of plaintiff and for a dismissal of the complaint.) Present — Taylor, P. J., MeCurn, Love, Vaughan and Piper, JJ.