
    Thomas Martin, as Administrator, etc., of James Martin, Deceased, Appellant, v. The State of New York, Respondent.
    Third Department,
    June 25, 1907.
    Negligence—respondeat superior — liability of State for injury from operation of car at State hospital.
    The State is not liable under the. doctrine of respondeat superior for the acts of its employees in conducting a State hospital. Hence, although an inmate of such hospital has been, killed by a railroad car owned and used by the State in connection with the hospital service, there can be no. recovery against the State.
    Appeal by the plaintiff, Thomas Martin, as administrator, etc., from a judgment of the Court of Claims of the State of Mew York in favor of the defendant, entered in the office of the clerk of said court qn the 9th day of July, 1906? dismissing the claim of the plaintiff,
    
      
      Hawley & Carmer (Chester O. Swain of counsel], for the appellant.
    
      W. S. Jackson, Attorney-General [Timothy I. Dillon, Deputy, of counsel], for the respondent.
   Kellogg, J.:

The plaintiff’s claim showed that while' his intestate, was .lawfully present in - a building upon the grounds of the 'Willard State Hospital, owned by' the ’State of New York; a railroad car belonging to and in use by the State, rolled down the track, running into the building, and killing the intestate; that the railroad car, was negligently left standing upon the. tracks, upon a steep grade, not sufficiently blocked; and that the car while defective had been negli- ' gently and carelessly inspected and utilized by the State. The Court of Claims properly dismissed the claim upon the trial. If' the State hadljemployed a team.to carry its patiénts or supplies to and from the hospital, and the'driver had been.careless in managing it or in keeping the vehicle in repair, and an injury had resulted to a third person, it cannot be claimed, within Lewis v. State (96 N. Y. 71). that the State would be -responsible for the negligence of the driver, as the rule respondeat superior does not apply to the State.. In employing a railroad track and-cars we must assume that they were a part.-of the appliances for the conduct and management'of the hospital,, and intended practically for the same service, which would be performed by carriages or wagons to bring the patients or - supplies - to and from the institution, and the. liability in the one case cannot differ from that in the other. It. cannot be assumed, under the allegation of the claim, that the defendant was conducting a railroad upon its hospital grounds for hire or profit. In the management of its canals, and perhaps in some other cases, the State has. made the rule of respondeat superior applicable to it, so that it is liable for the negligence of its servants. But that rule.does not' apply to its State hospitals, nor acts in relation thereto. If this hospital, instead of being-carried- on by thé State,, was carried on by a ■ private. corporation for ..the same charitable purposes,, it would-be exempt from the rule respondeat superior and would not be liable in this case. (Corbett v. St. Vincent's Industrial School, 177 N. Y. 16.) The reasoning in Litchfield v. Bond (186 N. Y. 66) applies' witl* ■ force here. - For the negligence of the employees of the State such employees, and not thé State, are liable.

Having reached the conclusion that there is no legal liability against the State, it is unnecessary to discuss whether the Court of Claims would have jurisdiction in case, such liability existed. The judgment should be affirmed, with costs.

Judgment unanimously affirmed, with costs.  