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MILLER v. DELAWARE COUNTY MEMORIAL HOSPITAL (03/15/68)

decided: March 15, 1968.

MILLER, APPELLANT,
v.
DELAWARE COUNTY MEMORIAL HOSPITAL



Appeal from judgment of Court of Common Pleas of Delaware County, No. 6373 of 1965, in case of Ruth Murray Miller v. Delaware County Memorial Hospital.

COUNSEL

David Freeman, for appellant.

John S. J. Brooks, for appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Chief Justice Bell. Mr. Justice Jones, Mr. Justice Cohen, Mr. Justice Eagen and Mr. Justice Roberts concur in the result. Dissenting Opinion by Mr. Justice Musmanno.

Author: Bell

[ 428 Pa. Page 505]

Plaintiff, an eighty-three-year-old woman, instituted an action in trespass against Delaware County Memorial Hospital seeking to recover damages for injuries sustained when she fell out of her bed. Plaintiff was admitted to defendant hospital January 5, 1964, suffering from bronchopneumonia and heart disease. On January 11, 1964, she fell from her bed. Her complaint alleged that defendant was negligent in failing ". . . to properly secure protective devices on plaintiff's bed. . . ." The complaint further alleges that as the result of the fall plaintiff sustained permanent injuries and "she has been deprived of her ability to earn a livelihood."

Plaintiff testified that while lying in bed she "reached for my pocketbook on the table . . . and I took hold of the rail for support, and down it went and I with it." Both the attending nurse and her superior testified that the rail had been properly secured prior to the fall.

The jury returned a verdict for defendant, and, after plaintiff's motion for a new trial had been dismissed, judgment was entered on the verdict and from this judgment plaintiff took this appeal.

Plaintiff-appellant alleges two grounds for a new trial, both of which are devoid of merit.

Plaintiff does not contend and could not successfully contend that defendant is an insurer. Instead, plaintiff relies expressly upon the doctrine of exclusive control and impliedly on the doctrine of res ipsa loquitur. Neither is applicable.

In Engle v. Spino, 425 Pa. 254, 228 A.2d 745, the Court pertinently said (page 257): "'The mere happening of an accident . . . does not establish negligence nor raise an inference or a presumption of negligence nor make out a prima facie case of negligence: [citing 7 supporting decisions of this Court].'" The Court further stated (page 257): "'The law is likewise clear

[ 428 Pa. Page 506]

    that the plaintiff has the burden of proving by a fair preponderance of the evidence that defendant was negligent and that his negligence was the proximate cause of the accident: Stimac v. Barkey, 405 ...


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