
    Eva Joel, App’lt, v. Woman’s Hospital in the State of New York, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 26, 1895.)
    
    Neglig-ettob—Hospital—Hubse.
    A hospital, which is a public charitable corporation, is not liable for the negligence of a nurse, if it has not omitted to exercise due care in her selection.
    Appeal from a judgment, dismissing the complaint on the merits.
    
      L. J. Morrison, for app’lt; H. JET. Vernon, for resp’t
   Brown, P. J.

The plaintiff was a patient in the defendant’s hospital from September 15 to December 15, 1892. While there she was placed under the influence of an anaesthetic during the performance of an operation. The evidence showed that patients, after undergoing operations, were usually placed on beds that were heated with bottles of hot water. The plaintiff was placed in a bed heated in that manner, but from which the nurse had neglected to remove the bottle, and the consequence was that her foot, coming in contact with the bottle, was severely burned. The evidence showed the defendant to be a public charitable corporation, and the appellant does not now deny that such is its character. Being such, we are of the opinion that the complaint was properly dismissed. Van Tassell v. Man. Eye & Ear Hospital, 39 St. Rep. 781, presented a case similar to that now before this court, and it was there decided by the general term of this department that the defendant was not liable except for the omission to exercise due care in the selection of its surgeons and other employes. In the absence of any controlling authority in state, we are bound by that decision. The great weight of authority, however, supports the ruling of the trial court. MeDonald v. Hospital, 120 Mass. 432; Insurance Patrol v. Boyd, 120 Pa. St. 624; Doyle v. Infirmary, 80 N. Y. 631; Harris v. Woman's Hospital, 27 Abb. N. C. 37; 39 St. Rep. 98; Allen v. State Steamship Co., 43 St. Rep. 386; O'Brien v. Steamship Co., 154 Mass. 272. In the case of Galvin v. Hospital, 12 R. I. 411, the ruling of the trial court, to which exception was taken, was much broader than in the case before us. In that case a verdict was directed for the defendant on the ground that a public charitable corporation was exempt from liability for any negligence on the part of its trustees, agents, etc. While there is very much in the opinion tending to support the appellant’s contention, the case as presented by the exception is not necessarily an authority in her favor.

The judgment must be affirmed, with costs.

All concur.  