(dissenting). After the defendant delivered five cases of bottled beer to the grocery store in which plaintiff was emplo37ed, these cases remained in the store for three days at which time the plaintiff proceeded to transfer the bottles to a refrigerator, and while occupied in so doing, one of the bottles exploded and injured him. There wras testimony to the effect that during the three-day period these bottles had remained in the back of the store, where defendant’s driver had placed them, and that they had not been touched by anyone.
On the evidence in this case the judgment should be reversed. The law seems to have been settled by the Court of Appeals that in an explosion case such as this, the doctrine of res ipso loquitur does not apply. This court had held to that effect (Migden v. Schoneberger & Noble, Inc., N. Y. L. J., July 5, 1935, p. 44, col. 2, citing Smith v. Peerless Glass Co., 259 N. Y. 292)., Aside from this, our highest court has made it very clear that negligence must be proved and will not be presumed in explosion cases (Reiss v. New York Steam Co., 128 N. Y. 103; Piehl v. Albany Railway, 30 App. Div. 166, affd. 162 N. Y. 617; Losee v. Buchanan, 51 N. Y. 476).
*153It would, therefore, seem that this court may not examine the question anew and come to a different conclusion based in part upon decisions of the courts of other jurisdictions. If there is to he any change in the law, that is a matter for the Court of Appeals to decide or for the Legislature to change by enactment of a different rule. Since the law would not seem to have been changed by the Court of Appeals nor the Legislature, the question is not open for examination by this court. We must follow the Court of Appeals even though there is authority to the contrary in sister States (Titus v. Booker, 216 App. Div. 608, 612; Exton & Co., Inc., v. Home Fire & Marine Insurance Co., 222 App. Div. 237, 239; Petry v. Petry, 186 App. Div. 738, 748; Matter of Tod, 85 Misc. 298, 304).
Assuming that the rule of res ipso loquitur could apply to an explosion case such as this, it is not applicable to the present case since the bottle which exploded was not under the exclusive control of the defendant at the time of the accident (Massa v. Nippon Yusen Kaisha, 264 N. Y. 283; Slater v. Barnes, 241 N. Y. 284; Sandler v. Garrison, 249 N. Y. 236). The bottle of beer which exploded had been in the store of plaintiff’s employer for three days prior to the accident. The claim that no one touched the bottle during the period it was in the store is not sufficient to place liability upon the defendant. Exclusive and complete control by the defendant of the bottle must be shown. It was not shown here and the doctrine of res ipso loquitur, therefore, may not be applied.
The judgment should be reversed and the complaint dismissed.
Hecht, J., concurs with Eder, J.; McLaughlin, J., dissents in opinion.
Judgment affirmed.