I do not concur in the affirmance of this judgment. The jury were instructed that they could find the appellant guilty of riegligence if, in the exercise of reasonable care in the discharge of its. duty, the appellant should have discovered either the omission of. this valve, or the imperfect manner of its return. The appellant then requested the court to charge that “ the duty of inspecting this pump was one that devolved upon Hagen or upon a co-servant of Hagen, and if ■ the accident happened by reason of the neglect of such co-servant, then the Ocean Steamship Company is not liable.” This request was refused in that form, and the appellant excepted.. The liability of the appellant was thus expressly confined to its negligence in the discharge of this duty of inspecting this pump prior to its use by the plaintiff’s intestate or in failing to repair the defect. The appellant was a corporation, and necessarily had to delegate this duty of inspection to its agents, and I think that, if the agents, whose duty it was to inspect, failed in that duty, no one of such agents upon whom such duty devolved could recover, as the negligence was that of a co-servant for which the appellant was not liable. *265It seems to me that the distinction must be' drawn between those servants of the appellant, regardless of their character or standing, who were charged with the duty of inspection and those upon whom no such duty devolved. It was said that the duty devolved primarily upon the first assistant engineer, and, certainly, if that engineer had neglected that duty and he had been injured in consequence of such negligence, he could not have recovered. And so, if any servant of the appellant, standing in the same relation to the master as to the particular duty which it was alleged was neglected, was negligent in the performance of that duty, then such negligence would be that of a co-servant, for which the master would not be responsible.
In this case the evidence is uncontradicted that this particular pump had not been repaired with the other machinery; that it was in perfect repair at the time those other repairs were commenced, and thatno necessity existed for removing these cushion valves. The assistant engineer, who was called by the plaintiff, testified- that the foreman of the Morgan Iron Works had informed him at one time that it would be necessary to remove those cushion valves, but had subsequently informed him that it would not be necessary and that they would not be touched, and this evidence was not contradicted. The foreman of the Morgan Iron Works testified that he had said to the assistant engineer that the valves would not be removed, and that, as a matter of fact, they were not removed. There is no evidence that the appellant or any of its officers had any knowledge that these valves were removed. An employee of the appellant, not connected with this department, testified that four or five days, prior to the accident he saw the valves removed from their position and placed upon the top of the pump ; that subsequently and on the same day he found the valves replaced, and, upon testing them, found them secure. This was the only evidence to justify a finding-that the valves had been removed, although, from the condition of the valves after the accident, it was apparent that they had been taken out of the pump. There was, however, nothing to call the attention of the appellant to the fact that these valves had been removed or that any inspection of the pump was necessary. The testimony is uncontradicted that the plaintiff’s intestate held the position of what was in effect an assistant to the engineer, and I *266think that he was a co-servant with the engineer in the discharge oí this duty of managing and inspecting this machinery. In the first place, to make it the duty of the appellant, to inspect this pump, there must have been some notice to the appellant or its agents that for some reason it had become out of order, or needed repair. Before negligence could be predicated upon a failure to: inspect, it certainly must appear that for some reason a prudent person would consider an inspection necessary. There was no evidence here to justify the slightest suspicion of the agents of the appellant that this pump was out of order, or that' inspection was necessary. The plaintiff’s intestate was entirely familiar with the operation of this pump and his duty in relation thereto. He had been engaged in operating this machinery for several years, and if it was negligence to start, this pump without testing these valves, he, being in charge of the pump, with knowledge of its construction and method of working, was as guilty of negligence in not making the proper test as was the engineer or his assistants who were on duty in charge of other parts of the machinery.
This conclusion, I think, is in accordance with the rule laid down in Crispin v. Babbitt (81 N. Y. 516). Judge Bapallo there says : “ The liability of the master does not depend upon the grade or rank of the employe whose negligence causes the injury. . A superintendent of a factory, although having power to employ men or represent the master in other respects, is, in the management of the machinery, a fellow-servant of the other operatives.” In the application of this rule, it seems to me that any negligence that •could be predicated upon a failure to inspect was either the negligence of the plaintiff’s intestate or his fellow-servant. Whose duty was it to inspect this machinery ? The appellant was a corporation and had to appoint agents to perform this duty. It appointed a chief engineer, assistant engineers and other employees designated as oilers, but whose real duty was to act as assistants to the engineers. In the management and control of the engines, it seems to me that all of these employees were co-servants, and that the chief engineer, or any other engineer, was, as said by Judge Bapallo in Crispin v. Babbitt (supra), “ in the management of the machinery, a fellow-servant of the other operatives.” I think, therefore, upon this •evidence the negligence, if any, was that of either the' plaintiff’s *267Intestate or his fellow-servant, for which the appellant was not responsible.
There was also a request to charge which was refused, to which I think the appellant was entitled. The only evidence that the accident caused the death of the intestate was the testimony of Dr. Cur-tin, who was a house surgeon at St. Vincent’s Hospital where the plaintiif’s intestate was carried after the accident. He testified that the plaintiff’s intestate was brought there on September fourteenth, and that his condition continued to improve until the third of October, when he suddenly died. The witness stated that in his opinion the cause of his death was intestinal perforation, the result of burns. "This witness had been in practice about eighteen months at the time of the accident. Upon his cross-examination he testified that the burns were not of a serious character, being, known as either of the first, second or third degree; that none of the burns ■extended below the true skin; that his fever lasted about a week, ■and after that he commenced to take solid food; that during tile second week the wounds gradually improved ; that all of the burns of the first and second degrees healed up and disappeared; that the only wounds then unhealed were upon his thigh; that he' was allowed to be dressed and to sit up in bed and was progressing favorably, when, on the third of October, his death came very suddenly, lie raised up in bed and then dropped back, collapsed and died in ten" minutes; that these were the first symptoms indicating that his ■condition was any more serious than it had appeared at any other time; that he never saw a case of intestinal perforation resulting from a burn, and that this was merely a matter of opinion. The appellant called a witness who, it was admitted by plaintiff’s counsel, qualified in every respect as an expert. He testified that in his opinion the plaintiff’s intestate did not die from the burn; that in ■cases where death comes from a perforation it is preceded by severe pain for forty-eight hours, and that the witness knew of no case ■where the patient had not lived at least twenty-one hours after the ■occurrence with intense pain ; that the symptoms in such a case are those of peritonitis at the beginning, constant pain and rise in temperature, a very rapid pulse and all attendants of such a condition; that in no recorded case have the symptoms been less than twenty-•one hours before death ; that “ if the first symptom was the collapse *268attendant on an effort to rise, and not preceded by fever, and death, resulted in ten minutes, that would exclude a perforation of the= duodenum; that is, that the death was caused by it.” Counsel for the appellant asked the court to charge that “ the jury are not. bound to believe the testimony of the plaintiff’s medical witness as-to his opinion that Hagen’s death was due to accident.” That the-court refused to charge and the appellant excepted. The court had charged the jury that the plaintiff, could not recover unless they believed that Hagen’s death resulted from the injury sustained by him on September 14, 1898. But, considering the character of the testimony and the rather remarkable evidence of this expert called by the plaintiff, I think the appellant was entitled to have the jury instructed that they were not bound to believe this opinion of the ■plaintiff’s expert and that a refusal to charge the request was error..
For these reasons I think the judgment should be reversed.
Judgment and order affirmed, with costs.