The sun. [volume] (New York [N.Y.]) 1833-1916, 1914-10-04
NOVEL POINTS OF THE LAW.

tient while in It's care Is decided by the
| Supreme Court OF Nebraska in Wetzel vs.
Omaha Maternity and General Hospital
in which tho court holds that a hospital
| Incorporated and conducted for private
| gain Is liable for the negligence OF nurses
| and other employees. The court said
| Defendant was incorporated 10 conduct
| a hospital for private gain. and as such
II Is liable In damages to patients for the
| negligence OF its nurses and other en-
ployees. The rule OF law stated rests IN
the general principle that a master Is
| responsible for the torts of servant In
the scope OF his employment. This doc
trine applies to a hospital receiving for
| special care delirious patients who, on ac-
count OF temporary conditions produced
iby fever or other ailments. are not ac-
countable for their own acts or conduct a
patient IL generally admitted to hos
pital conducted for private gain under
an implied obligation that he shall receive
such reasonable care and attention for
his safety as his mental and physical con-
dition. IL known, may require. Any other
| rule would be a reproach to the law and
to hospital management"
Concerning the sort OF proof necessary
10 SHOW negligence. the court said:
Duties which a hospital as such owes
to n patient cannot be evaded by proof
| that the hospital nurse obeyed the instruc-
lions OF the physician employed by him.
Nurses necessarily have charge of deli
| rious patients during the absence of ply
slcians. while the responsibility of the
hospital continues. In the present case
the nurse knew that the patient was In
| danger from delrum. For his protection
sho had strapped him TO his bed and the
patients physician had approved of her
act. A clinical record made by her ShowS
that the patient was in a dazed condition
a few hours before he left his bed. I'm
der the circumstances self-InJury may
| well have been foreseen. The patient was
left near movable, unfastened. unpro-
tected window sash in room three sto-
ries above the pavement. He in fact COM
mitted an irrational act resulting In his
death. II cannot be said, as n matter OF
law. that there was no proof of negligence
on her part or on the part OF her en-
ployer nurses absence of Ave minutes
may amount to negligence. Under the cir
cumstances of this case. as already out
lined. the question OF negligence was an
issue OF fact for the jury"
An important admiralty decision was
rendered by the United States Circuit
Court OF Appeals. Second Circuit. in Ben
ner Line VS.. Pendleton. in which the court
holds that "in every contract for the car
riage OF goods by sea. unless otherwise
expressly stipulated. there In an absolute
warranty on the part OF the ship owner
that the ship Is seaworthy at the time Of
beginning her voyage. which warranty
does not depend upon his knowledge or
ignorance. his care or negligence. To con-
stitute seaworthiness the hull must he so
tight, stanch and strong to be compe-
tent to resist all ordinary action OF the
sea and to prosecute and complete the
voyage without damage to the cargo"
The Supreme Court OF Errors Of Con-
nectlcut decides In Merrill VS. Hodson that
, pnaF.
patrons order for immediate consumption
, IL not a sale OF goods. since the consumer
does not become the owner OF the food
served. but merely has the privilege OF
consuming what he needs The court ac-
cordingly ruled that suit would not lie
against "A restaurant keeper under the sale
OF goods act. in which there was implied
warranty that the food served was whole
some and III for consumption The court
said that the remedy Of "A guest injured at
. a restaurant by improper food served to
him must be based on the negligence of
the proprietor.
; unique case under the Federal EN-
, ployers liability act was decided by the
; United States Circuit Court OF Appeals
Sixth Circuit In New York. Chicago and
St Louis Railway Company w. Michel, In
which 1t appeared that the suit was
brought for the death OF iagman for
, the railroad company on a train delayed
by switch blocked with snow which was
> struck by a train following Il. The court
ruled that the question of whether there
was negligence of the engineer on the
train following the one stalled was one
for the jury, since the dead fiagman had
. been sent back 10 protect the rear OF his
, train, but he failed 10 do so until too late.
The court held that the jury must "con-
slider all the circumstances characterizing
the negligence of either party and fixing
, NJ hat
, In relating to the sum total OF the negli-
gence Of both parties and, though the neg
ligence OF either appears. all circumstance
OF aggravation or mitigation must be
, considered"
A recent decision by the Court OF APP
peals OF New York on the subject OF
dying declarations Is handed down In
/, People W.. Sarzsno, in which It appeared
that the deceased. after being taken to a
hospital was told by physician that he
was about 10 die and was asked 20 give
? an ante-mortem statement. The deceased
then gave n statement which was writes
on a printed blank by the physician. The
court holds that under the facts stated
there was no proof that the decea sed
knew ne was about TO die or that he did
! more than affirm the statements on the
, printed blank. The court ruled that such
facts were insufficient TO entltle the ad-
. mission OF the statements in evidence as a
dying declaration, and said
an the present case the preliminary
proof was too slight and indefinite 10
Justify the admission Of the statement.
, | The transaction. apart from the wounds.
, was this strange man said 20 the
: deceased when received al the hospital
that his condition was critical and he
was going to die and they wanted an
! ante morton statement for purposes that
l might arise later, and the deceased said
: all right he would give II, and the
, statement that he made the statement
; under the influence OF an impression that
r am about to die and have no hopes Of
4 my recovery from the effects OF my
wounds make this statement under
that impression was read over TO him with
the other parts OF the statement and said
by him to he true The declarant did not
ask for wife. children, friends or priest
or by word or act indicate that he believed
his death certain and imminent He did
? not say or show that he believed he would
recover and was without any hope what
I, soever OF living"
The Supreme Court OF New Mexico
$ treats OF dying declarations In State vs..
Valencia as follows
, Dying declarations, being IN their
nature secondary evidence and subject ia