I dissent from the conclusion reached by Mr. Justice Hinman and the majority of the court that the complaint in this action should be dismissed.
He has reached his conclusion upon the assumption of fact that Cornell University is a charitable and eleemosynary institution and that the plaintiff was a student at it.
The facts are that the plaintiff did not matriculate at the university but did at the State College of Agriculture. There is no relationship between these institutions except that the conduct and administration of the college is placed by law (Education Law, § 1039) under the university. It was further provided by that law that the university should receive no income, profit or compensation from the moneys appropriated by the State for the Agricultural College.
In the year 1915 there was appropriated by the State Legislature for the support and maintenance of the Agricultural College $939,338.26. (See Laws of 1915, chaps. 725, 726, 727, 728.) If there were no contractual relationship between the university and the plaintiff that she should receive charity in the form of education, then there was no room for the implication of an agreement on the part of the plaintiff to waive the negligence of the servants of the university. It is true that there was accorded to the plaintiff the instruction and facilities of the chemical laboratory of the defendant. Such instruction and facilities came to the plaintiff not as the student of the university but as a student of the State Agricultural College. The university accorded to the State the right of its students to take a chemical course in the university. Notwithstanding the legislative provision that the university should have no income, profit or compensation from the moneys appropriated by the State for the Agricultural College the university used the college to educate its students in agriculture and the subjects particularly taught in the State College.
The relation between the two institutions was that of interchange of facilities.
The inference is plain that the university in the management and administration of both institutions undertook to compensate the State for the educational facilities of the Agricultural College by certain instruction and facilities in the university. Under these conditions it is a matter of little moment so far as the legal rule exists in the doctrine of respondeat superior, whether the plaintiff availed herself of the chemical course in the university for a quid pro quo furnished by the State to the university (Buchanan *675v. Tilden, 158 N. Y. 109; Seaver v. Ransom, 224 id. 240; DeCicco v. Schweizer, 221 id. 437; Lawrence v. Fox, 20 id. 268) or as an invitee. (Heskell v. Auburn Light, Heat & Power Co., 209 N. Y. 86.) The State did not pass its charity along to the university.
If I am right in describing the status of the plaintiff and restoring to the case the application of the rule of respondeat superior as to servants that there is no immunity on account of such doctrine to the managers must be plain. If it were otherwise it has not yet been held in this State that the managers and alter egos of charitable institutions are immune from that rule.
It seems to me that in the light of the authorities headed by Hordern v. Salvation Army (199 N. Y. 233), Presiding Justice Jenks of the Appellate Division of the Second Department was correct in stating the position of that court as follows: “ This limitation has not been accepted without some criticism and protest, prompted often by the consideration that a judgment on such liability [that of the managers and trustees] none the less affects the defendant, but if, for that consideration or for any other, the principle should be unlimited, it should be thus declared by the Court of Appeals alone.” (Goodman v. Brooklyn Hebrew Orphan Asylum, 178 App. Div. 683.)
If we are to ignore what our courts have held with regard to the liabilities of charitable institutions for the negligence of their managers and enter into the reasons for the rules which accord such institutions immunity, we may well inquire whether this rule of immunity with which the courts have hedged about these largely endowed institutions is not archaic and mediaeval.
Assuming the fact of responsibility as found by the jury the plaintiff appealed for an education to charity and it plucked out her eye; she asked for bread and it gave her a stone. This is not the charity of the book of books describing charity for “ charity suffereth long and is kind.”
The reasons that existed in the early days of this country for encouraging the efforts of philanthropy in building and equipping hospitals and institutions of education should no longer be so controlling, for such efforts have resulted in the erection and maintenance of such institutions enjoying endowments and revenues beyond the imaginations of the early lawmakers.
I have no sympathy with the attempt of Mr. Justice Hinman to take out of our law the doctrine of respondeat superior as it now exists (Hordern v. Salvation Army, supra) in respect to the liability of the trustees and managers of charitable and eleemosynary institutions for their negligence. He asserts that it is necessary to hold such doctrine in order to preserve the jewel of consistency, *676and cites McDonald v. Massachusetts General Hospital (120 Mass. 432) as a controlling authority; the reason of that case being that if such institutions are immune for the negligence of their servants they ought to be immune from the consequences of the negligence of their other servants, the managers, trustees, superintendents and alter egos. It seems to me that the reason of the rule of non-immunity of such institutions on account of the negligence of trustees and managers, etc., is the sounder one, and I urge that the converse of Mr. Justice Hinman’s proposition should here be held in order that to be consistent we should, hold such institutions not immune for the negligence of humbler servants. The tendency of the courts has been towards a more liberal rule of liability as to these institutions, and is exemplified in the case of Breed v. Cornell University (198 App. Div. 966; affd., 233 N.Y. 518; Workmen’s Compensation Law). The reason for the doctrine of immunity from responsibility for the negligence of servants is found in the rule of law that an implied agreement to waive claims for injury based on negligence of servants grows out of the acceptance of charity. How an agreement to waive away a claim for damages for one’s life, one’s arm, one’s leg or one’s eye, can be implied where there is utter ignorance on the part of the recipient of charity that such an unconscionable deprivation of human right follows the acceptance of charity, I cannot fathom. (Woods v. Ayers, 39 Mich. 350.) And this waiver is generally implied and a contract thus made for children under the age of twenty-one seeking an education and incapable of making a contract. Then, too, it seems unreasonable that if there is to be immunity for such institutions it may not be exacted of strangers. Why not of strangers? Because no implied contract of waiver can be raised against them. It is beyond me why the indigent and poverty-stricken, who have to accept charity to get ahead in life and to live, should have precious rights denied them by such institutions, and strangers to them, able to protect themselves, should be held to have such precious rights without impairment. The better reason and the exercise of a broader and sounder justice would be to apply the doctrine of non-immunity to the needy seeker of charity rather than to the stranger. If immunity be based upon public policy I think it misplaced, for it seems to me that a public policy which secures to the individual the right of damages for any wrongs he suffers to his person is superior to that which fosters these great, powerful, charitable institutions. The time has passed when such institutions need the further fostering care of the State. Since their function is kindness and helpfulness to humanity, when they step aside from functioning to such end they should have no immunity *677from the commission of wrongs not enjoyed by other corporations engaged in pubhc service. If the wrong is of such magnitude that the imposition of damages for its commission would destroy the charity, then it seems to me that it ought to be destroyed. If the institution is able to pay I can see no reason, if we are to pursue the idea of consistency, why such institutions should not respond to injuries inflicted by servants as well as those inflicted by trustees or managers.
The judgment it seems,to me cannot, however, be affirmed. The trial court charged the jury in substance that it was the duty of the university to inspect the chemicals delivered to the students “ in order that the possibility of an accident might be avoided.”
I think the exception to that language may be found at folio 1736. That it does not state the rule of duty upon the part of the defendant applicable to this case, may not be disputed.
The rule stated is not that of reasonable care but rather that which binds common carriers in the rendition of services to the public. The duty on the institution was not to make the highest, the utmost and greatest effort to eliminate the possibility of injury to its students. (Topeka City R. Co. v. Higgs, 38 Kan. 375; 5 Am. St. Rep. 760.) It seems, therefore, that such instruction was erroneous.
It is very doubtful too whether the court was correct in charging that the defendant owed the plaintiff the duty of inspecting the chemical materials used in making the experiment described in the case at bar as a matter of law. (Allison Manufacturing Co. v. McCormick, 118 Penn. St. 519; Dwyer v. Buffalo General Electric Co., 20 App. Div. 124; 6 Thomp. Neg. [2d ed.] § 7403, p. 446.)
I think too the learned trial judge erred in admitting the evidence showing another accident, the explosion that occurred some ten minutes or less prior to the accident to the plaintiff, without showing that that accident occurred in a substantially similar manner to that which happened to the plaintiff from a union and heating over a 'Bunsen burner of the same chemicals used by the plaintiff in the experiment in which she was injured. (Meiers v. Koch Brewery, 180 App. Div. 450, 454; affd., 229 N. Y. 10; Withers v. Brooklyn Real Estate Exchange, Ltd., 106 App. Div. 255.)
The judgment should be reversed and a new trial granted.
Judgment and order reversed upon the law and complaint dismissed, with costs.