I do not concur in the affirmance of this judgment. The jury were instructed that they could find the defendant guilty of negligence if, in the exercise of reasonable care in the discharge of its duty, the defendant should have discovered either the omission of this valve, or, after its return, the imperfect manner of its return. The defendant 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, the Ocean Steamship Company is not liable.”
This request was refused in that form, and the defendant excepted. The liability of the defendant 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 report the defect. The defendant was a corporation, and necessarily had to delegate this duty of inspection to servants appointed by it; and I think that if the servants appointed, whose duty it was to inspect, failed in that duty, no one of such servants upon whom such duty devolved could recover, as the negligence was that of a co-servant, for which the defendant was not liable. It seems to me that the distinction must be drawn between those servants of the defendant, 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,1 he could not have recovered. And so, if any servant of the defendant standing in the same relation to the master as to the particular duty which it was alleged was neglected, were 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 that no 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 t'o remove these cushion valves, but had subsequently informed Mm 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 defendant or any of its officers had any knowledge that these valves were removed. An employé of the defendant, not connected with this department, testified that four or five days prior to the accident he saw *787the 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 beep 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 defendant; to the fact that these valves had been removed, or that any inspection of the pump was necessary. The testimony is uncontradicteS that the plaintiff’s intestate held the position of what was, in effect, an assistant to the engineer; and I think that he was a co-servant with the engineer in the discharge of this duty of managing and inspecting this machinery. In the first place, to make it the duty ©£ the defendant to inspect this pump, there must have been some notice to the defendant or its agents that for some reason it had become out of order or needed repair. Before negligence could foe predicated upon a failure to inspect, it certainly must appear that for some reason a prudent person wonld consider an inspection necessary. There was no evidence here to justify the slightest suspicion on behalf of the agents of the defendant 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 Rapalle there says:.
“The liability of the master does not depend upon the grade or rank of theemployé whose negligence causes the injury. A superintendent of a factory, although having the 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 defendant was a corporation, and had to appoint agents to perform this duty. It appointed a chief engineer, assistant engineers, and othei employes,, 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 employés were co-servants, and that the chief engineer, or any other engineer, was, as said by JudgeEtapallo in Crispin v. Babbitt, “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, intestate or his fellow servant, for which the defendant was not responsible.
*788There was also a request to charge, which was refused, to which I think the defendant was entitled. The only evidence that the accident caused the death of the intestate was the testimony of Dr. Curtin, who was a house surgeon at St. Vincent’s Hospital when the plaintiff was carried there after the accident. He testified that the plaintiff’s intestate was brought there on 'September láth, and that his condition continued to improve until the 3d 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 18 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 the 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 3d of October, his death came very suddenly; that he raised up in bed, and then dropped back, collapsed, and died in 10 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 defendant 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 48 hours, and that the witness knew of no case where the patient had not lived at least 21 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 21 hours before death; that “if the first symptom was the collapse attendant 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 defendant 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 defendant 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 defendant was entitled to have the jury instructed that they were not bound to believe this opinion of tire plaintiff’s expert, and that a refusal to charge the request was error.
For these reasons, I think the judgment should be reversed.