Opinion
March 18, 1940.
In an action to recover damages for negligence resulting in injury and death of plaintiff's intestate, judgment reversed on the law, with costs, and complaint dismissed, with costs. Appeal from order denying motion to set aside the verdict and for a new trial dismissed. Plaintiff's proof is to the effect that after an interne and an orderly had transferred the decedent from an ambulance to an examination room, the door of the room was closed for a very short interval and then both the interne and the orderly left the room, leaving decedent alone therein, lying on the top of a wheel table in a critical condition. While so unattended, the decedent fell from the table to the floor, sustaining injuries which resulted in his death. The duty of the orderly, as such, terminated when he delivered the patient to the examining room and into the custody of the interne. If negligence were to be predicated upon the fact that even though the interne retired from the room the orderly should have remained, then the latter's duties in remaining would have been those of a nurse in attending the patient, and negligence in connection with that status cannot be attributed to the defendant hospital. ( Phillips v. Buffalo General Hospital, 239 N.Y. 188.) Lazansky, P.J., Hagarty, Carswell, Taylor and Close, JJ., concur.