Before WATERMAN and KAUFMAN, Circuit Judges, and BRYAN, District Judge.
FREDERICK van PELT BRYAN, District Judge.
The United States appeals from a judgment entered against it in an action under the Federal Tort Claims Act*fn1 in the United States District Court for the Eastern District of New York. Plaintiff Ridolfi sued for personal injuries sustained while he was a patient in the Veterans Administration Hospital at Northport, Long Island, as a result of alleged negligence. The case was tried to the court without a jury. The court found for the plaintiff and awarded damages of $3,570. Judgment was entered accordingly.
Both parties accept the findings of fact made by the trial court. The only question on appeal is whether, as a matter of law, the United States may be held liable upon such findings.
We hold that, upon the findings of fact below, the United States was not liable to plaintiff and that the District Court erred in holding that it was.
The pertinent facts bearing on the question of liability, as found by the court below, are as follows:
Ridolfi was admitted to the Northport Hospital on January 29, 1958 as a voluntary patient for the treatment of acute alcoholism. On admission he was interviewed by two doctors and sent to Ward 11, the security ward. Twenty-four hours hydrotherapy (wrapping the patient in wet sheets) was authorized in the event he became violent but apparently it did not become necessary to administer this treatment. Ridolfi spent an uneventful first day and night in Ward 11. He evidenced no excitement or observable disturbance during this period and was not given any medication or treatment.
On the following morning, January 30, at about 6:45 a.m., Ridolfi sustained a fracture of the left humerus "while properly in the corridor of Ward 11 on the way to or at the drinking water fountain, when, for the first time during his life, he suffered an unanticipatable and unanticipated Grand-Mal seizure in the course of which he bit his tongue; the seizure was followed by a period of confusion on plaintiff's part; plaintiff has no genuine, ordered recollection of the occurrence or the immediately succeeding events; the manner in which, and the point, during the course of the seizure and return to full unconfused consciousness, at which the injury occurred are unknown to plaintiff and unexplained by defendant."*fn2
"Defendant could not have foreseen that plaintiff would have a seizure of the kind that he had nor could defendant have observed the onset of the seizure. Plaintiff had no history of such seizure."
A nurse's aid went to Ridolfi's assistance when he fell and other attendants observed him sitting on the floor of the corridor with legs outstretched, his back to the wall and his eyes open. When a nurse arrived Ridolfi complained of no pain except to his tongue, said he was all right and sat up. The nurse noted no other injury.
About half an hour later Ridolfi was visited by a doctor who found that he was "manifesting terrific agitation and restlessness," and that he complained of pain in his left arm and back. Subsequent examination and X-rays disclosed the fracture for which he brought this action.
The court below found as a fact that the circumstances of the injury as shown by the evidence did "not support or permit an inference of fact, based on preponderance of factual probability, that plaintiff's injury was caused by an act or omission on defendant's part that constituted negligence or other wrong; the circumstances are too incompletely evidenced to indicate the precise injury producing physical event; if no other evidence were producible, the possibility that defendant's negligence produced the injury, while not excluded, could not be a preponderant inference of fact."
It concluded that "the direct and circumstantial evidence, taken as a whole, does not establish negligence on defendant's part as a more probable inference than an inference of pure accident or of a battery";*fn3 but that "such evidence is compatible with the existence of negligence on defendant's part as a possible cause of the injury to plaintiff."
The court nevertheless held that the doctrine of res ipsa loquitur was applicable and that "Defendant was required, on the basis of the evidence as it was when plaintiff rested, to adduce evidence, to the extent available to it, fairly explanatory of the event that produced the injury to plaintiff * * *." It found that "no satisfactory explanation of the circumstances of the happening of the injury and the physical ...