STANLEY, Commissioner. The appellant, Lexington Hospital, a corporation, operates a private sanatorium called Wayside Hospital for the special treatment of patients suffering mental or nervous illness. The appellee, David S. White, recovered judgment against it for $6,963.57, of which $5,000 is for personal injuries and $1,963.57 for medical expenses, etc. The action is based on negligence in failing to guard and protect the plaintiff when he was mentally incapable of caring for himself. In delirium, and unable to realize the consequences, he broke through a window and jumped from a second story and suffered severe injuries.
The appellant contends it was entitled to a directed verdict on two grounds. One is that it was not negligent and the other that its attendants and nurses had dutifully and literally carried out the instructions of the patient's physicians regarding his place in the hospital and their surveillance.
The plaintiff had been afflicted with periodical epileptic attacks which had been growing more frequent and severe. His local physician at Corbin communicated with Dr. H. Halbert Leet, the president of the defendant corporation and in charge of the hospital, and he advised that the patient be brought there. He was received in the early evening of Thursday, May 12, 1949, by Edward L. Houchins, an attendant having the title of a psychiatric aide, and placed in a 'closed ward' on the second floor. His wife signed an elaborate contract with the hospital which recites that the patient was 'in need of restraint and treatment.' It contains many provisions of immunity from liability, upon which, however, the defendant does not rely.
The plaintiff's affliction was characterized by anxiety symptoms before the seizure and paranoid delusions immediately following. When so suffering, he imagined he was in a German prison with spies all around him, and without warning would run off and hide. The day before he was taken to the hospital he had such an attack and fled from his home over a back fence to a neighbor's house, where he was found two hours later hiding on the back porch. When he was being entered in the hospital, the patient's wife and brother very clearly and specifically told Houchins his condition and the effect of the epileptic attacks. He was warned that Mr. White should be closely watched. Houchins admitted that this was told to him 'over and over' and that he assured Mrs. White that the hospital would take care of her husband and would do everything possible they could for him. While his wife was talking to Houchins she asked if he could get out of a window, and he replied that he could not for the windows were barred. Later, during the evening, Dr. Carl Weisel of the hospital staff made a tentative diagnosis of the patient, including his physical and mental condition, hallucinations and proclivities. The plaintiff's brother testified that he told Dr. Weisel that he should be watched and guarded closely because 'he would take off, start running without a minute's notice' and they were afraid he would hurt himself. A notation was made on the hospital chart that he should be watched for epileptic fits. On a hospital form styled, 'Initial Standing Orders,' appears an entry, 'Special observation for suicide or escape.'
On Sunday following White's admittance to the hospital he escaped and upon reaching Richmond, called his wife. She called Dr. Leet, and though he advised that White be allowed to return to his home and brought back the next day, Mrs. White and his brother brought him back to the Wayside Hospital that night. The next day, May 16, one attendant left White in the ward on the second floor and went to another room to assist a patient, and another attendant went downstairs to the office or to look after a patient. White was left unattended and unwatched. He went into a bathroom, smashed out the top sash, and in attempting to escape, fell to the brick sidewalk two stories below. The lower part of the window was covered with a grill or metal bars, as were other windows on the floor.
The plaintiff testified that he had realized his condition but had no recollection whatever of having been brought to the Wayside Hospital or of anything that happened there. He came to realization or consciousness several days afterward in St. Joseph's Hospital in Lexington where he had been taken for treatment of his injuries.
We need not elaborate upon the defendant's evidence, for we are considering only the question of the sufficiency of the plaintiff's proof to take the case to the jury. The evidence, consisting of certain facts and professional views, is to the effect that the patient had been reasonable protected; that the barring of the lower part of the windows and the surveillance given were sufficient measures to avert what reasonable persons under the circumstances might anticipate, and that the patient's action and conduct resulting in his injuries could not have been reasonably foreseen. It was shown that just before the accident White was sitting on a divan in the dayroom reading a newspaper and seemed to be all right.
It is not questioned that a private hospital, not conducted as a charitable institution, receives patients under an implied obligation to exercise ordinary care and attention for their safety, and that such degree of care and protection should be in proportion to the physical and mental ailments of the particular patient, known or discoverable by the exercise of reasonable skill and diligence. The hospital or its proprietor must respond in damages to a patient injured through the failure of its nurses and attendants to observe that duty either through an act of omission or of commission. University of Louisville v. Hammock, 127 Ky. 564, 106 S.W. 219, 14 L.R.A.,N.S., 784, 128 Am.St.Rep. 355; Kirby v. Berea College, 196 Ky. 353, 244 S.W. 775; Hignite's Administratrix v. Louisville Neuropathic Sanitorium, 223 Ky. 497, 4 S.W.2d 407; Hicks' Administratrix v. Harlan Hospital, 231 Ky. 60, 21 S.W.2d 125; 26 Am.Jur., Hospitals and Asylums, Sec. 14; 41 C.J.S., Hospitals, § 8(3).
In the case of a delirious or deranged patient or one likely to become such, the hospital's reasonable care and attention extends to safeguarding him from danger due to his mental incapacity to care for himself. This comprehends any danger which the surroundings would indicate to physicians and nurses of prudence, competency and experience ordinarily possessed by persons similarly engaged, might befall such patient in view of any peculiar trait exhibited by him or which his mental condition or aberration would suggest as likely to happen. Davis v. Springfield Hospital, 204 Mo.App. 626, 218 S.W. 696; Robertson v. Charles B. Towns Hospital, 178 App.Div. 285, 165 N.Y.S. 17.
Jumping or falling from an upper story of the building is a danger which may be apprehended. A number of cases where patients jumped or fell out of windows or were let escape from the hospital are noted in 22 A.L.R. 347; 39 A.L.R. 1433, 1435; 124 A.L.R. 195. Two of these notes are of such pertinence to the instant case that we quote them.
'Where one suffering from alcoholism and its attendant illusions of fear of bodily harm and a desire to escape imaginary foes was taken to a hospital for treatment, and assigned to a room on the third floor, in which there was only one window, which was guarded with a metallic grating, but was killed by falling from an unguarded window in a lavatory which he had been accustomed to use, this window being covered with glass which the patient broke, it was held that, although there was no evidence that conscious suicide should have been foreseen, it was for the jury to say whether the physician or the nurse in charge should not, in the exercise of requisite skill and care, have foreseen such a causality and protected the patient. Robertson v. Charles B. Towns Hospital (N.Y.) supra.'
'And where the patient was brought to a private hospital 'mentally off' and his wife volunteered to stay with him for the night when informed by the nurse that he was in no condition to be left by himself, although no arrangement was made for a special nurse, and it appeared that he had attempted to climb out of the window but was put back to bed by the nurse, and that while the nurse was absent and the wife asleep from exhaustion, the patient left the bed and jumped from a second-story window, injuring himself, it was held in Tate v. McCall Hospital (1938) 57 Ga.App. 824, 196 S.E. 906, that the facts presented a case for the jury to determine as to whether or not the hospital used ordinary and reasonable care to prevent the patient from harming himself, and it was error in the trial court to grant a nonsuit.'
Counsel for the appellant contend that the appellee's act was so unusual and extraordinary that it was altogether unforeseeable, hence, negligence in not foreseeing and guarding against such an act cannot be charged against the hospital. Foreseeableness or predictability of casualty is not the sole measure of duty. Accidents almost invariably are surprises in the sense that the precise manner of their occurrence cannot be foreseen. It is but a test of negligence, namely, whether the defendant's conduct created an unreasonable risk of harm to the plaintiff. If it did, the defendant is liable for all the injuries within the reasonable range of such risk whether they could have been foreseen or not. Spivey v. St. Thomas Hospital, 31 Tenn.App. 12, 211 S.W.2d 450. The Restatement of the Law of Torts, Sec. 435, Supplement, states the law to be:
'(1) If the actor's conduct is a substantial factor in bringing about harm to another, the fact that the actor neither foresaw nor should have foreseen the extent of the harm or the manner in which ...