Hamburger v. Cornell Univ.

Decision Date02 June 1925
Citation148 N.E. 539,240 N.Y. 328
PartiesHAMBURGER v. CORNELL UNIVERSITY.
CourtNew York Court of Appeals Court of Appeals

OPINION TEXT STARTS HERE

Action by Louise Hamburger against Cornell University. From a judgment of the Appellate Division of the Supreme Court in the Third Judicial Department, reversing (204 App. Div. 664, 199 N. Y. S. 369) a judgment of the Trial Term, entered on a verdict in favor of the plaintiff, and dismissing the complaint, plaintiff appeals.

Affirmed.

Appeal from Supreme Court, Appellate Division, Third Department.

Nash Rockwood, Charles T. Lark, both of New York City, and Harry P. Pendrick, of Saratoga Springs, for appellant.

Frederick Collin, of New York City, and Mynderse Van Cleef, of Ithaca, for respondent.

CARDOZO, J.

Plaintiff was injured by the explosion of chemicals while a student in a chemical laboratory in Cornell University. She charges that the explosion was due to the negligence of professors and instructors, and to the incompetence as well as negligence of subordinate servants. The Appellate Division, reversing a judgment in her favor, has dismissed the complaint. The question to be determined is the extent of the defendant's immunity as a charitable institution.

Students in the chemical laboratory were notified January 12, 1916, that they were to perform two experiments, one designated No. 84, the other No. 88. No. 84 involved the use of potassium chlorate and strontium nitrate. No. 88 involved the use of mercuric sulphide and calcium oxide or powdered lime. The first experiment was performed without accident, though plaintiff did not personally take part in it. In connection with the second, the accident occurred. There were supply tables in the laboratory, on which it was the practice of the instructors to place the cheaper kinds of chemicals that were to be made use of by the students in the program of the day. There was also an adjoining storeroom, where other chemicals, more expensive, were handed out through a window. The plaintiff was informed by notice on the blackboard that the potassium chlorate for No. 84 and the calcium oxide for No. 88 were to be procured from the supply tables (of which there were several in the laboratory), and that the mercuric sulphide would be given out from the storeroom. She went to a supply table, and finding there a bottle labeled calcium oxide, she measured out the prescribed quantity and left it on her desk. This is her testimony, though the defendant rejects it, and insists that the contents of another bottle, labeled potassium chlorate, were taken by mistake. Both chemicals are white, though one is crystalline and the other not, and confusion would be easy if labels were disregarded. The next thing to be done was to get the mercuric sulphide. Plaintiff went to the window of the storeroom, and received what she described as a reddish black powder, which was handed to her through the window by a boy within. Ahead of her was another student, one Feuerstein, who received a similar portion. Both Feuerstein and plaintiff then went back to their desks. There is testimony by the instructors that many other students had already completed the experiment without accident. Plaintiff mixed the chemicals in a mortar, and poured some of the mixture into a glass tube which she sealed, with the aid of an instructor who was standing by. When the tube with the mixture in it was placed over the flame of a Bunsen burner, an explosion followed. Plaintiff lost the use of an eye as a result of her injuries. While she was preparing for the experiment, Feuerstein, the student who was ahead of her at the storeroom, suffered slight injuries through an explosion at the other end of the laboratory. The professor in charge caused one of his assistants to gather together the remnants of the chemicals at Feuerstein's desk and also at the plaintiff's. In each instance the ingredients found upon analysis were mercuric sulphide and potassium chlorate instead of mercuric sulphide and calcium oxide. A bottle of black mercuric sulphide, from which students had been supplied from the storeroom, was also analyzed. It was pure except for a very faint trace of sodium, so small as to be harmless, and discoverable only as the result of chemical analysis. There had also been in use in the storeroom that day a bottle of red mercuric sulphide, which, however, was not analyzed, except as it may have been included in what was left upon the desks. The evidence is that there is no risk of explosion through the mixture and heating of mercuric sulphide and lime. Such a risk exists, however, when the lime is replaced by potassium chlorate, though even then there is need, it seems, of the addition of organic matter, such as dust or wood or paper. The potassium chlorate used was proved to be the commercial product, in which particles of organic matter can occasionally be found. The defendant's explanation of the accident is that the plaintiff brought it about by taking potassium chlorate from the supply tables when she ought to have taken lime. The plaintiff's explanation is or seems to be that something other than mercuric sulphide was dispensed at the window of the storeroom.

We have yet to state the system or practice under which laboratory and storeroom were provided with supplies. Chemicals were bought from accredited manufacturers, and upon delivery at the university, with labels already on them, were placed in the main storeroom located in the basement. The storeroom clerk in charge of them, though not a trained chemist, had an experience of 40 years. From this storeroom, supplies were sent, when called for, either to the laboratory, where teachers or students conducted their experiments, or to the secondary storeroom adjacent to the laboratory. This secondary storeroom was in charge of one Hagin, not a chemist, who was assisted to some extent by his son, a boy of 15 years. Distribution from the main storeroom to the secondary storeroom and the laboratory was in charge of a committee of instructors in the chemistry department, known as the reagents committee. When the work of a day included experiments by the students, one or more of these instructors procured, in preparation for such experiments, the necessary chemicals. This they did presonally. Neither the selection of the chemicals nor the transfer from the larger containers in the storeroom to the smaller cans or bottles was left to the storeroom clerks. Sometimes, when there was not time during one day for all the sections of a class to complete the experiments included in the schedule, the chemicals were left in their bottles or cans on the laboratory supply tables or in the secondary storeroom till the class met again. As a rule, the supplies were changed or replenished at the beginning of the day.

In preparation for experiments Nos. 84 and 88, an instructor went to the main storeroom and took from the proper containers the requisite quantities of potassium chlorate and calcium oxide, which he transferred into bottles on the laboratory supply tables. His testimony is that in each instance the proper label was affixed. He also brought to the secondary storeroom a bottle or can of black mercuric sulphide. He poured out some of the contents upon a shelf, and indicated to Hagin the quantity to be placed uponslips of paper and handed to the students as they made application at the window. Before the experiment was over, this supply was used up, and an additional supply, this time red in color, was procured from another instructor, a member of the committee. The testimony shows that mercuric sulphide may be red as well as black. No other chemical was dispensed at the window during the day for this experiment or for any other. There was thus no opportunity, it would seem, for error or confusion on the part of Hagin or his son in the handling of ingredients. All that the son did was to deliver to the students the slips of paper already prepared by the father under the directions of an instructor. With the work of preparation the boy had nothing to do.

The trial judge left it to the jury to say whether the defendant had been negligent in omitting to subject the ingredients to chemical analysis, or in selecting incompetent custodians for the storeroom, or in distributing through the storeroom window a chemical other than mercuric sulphide. With the tacit, if not express, approval of counsel for the plaintiff, he refused to submit to the jury any question in respect of the mislabeling of the calcium oxide, taking the ground that no mislabeling had been proved, and that defendant's fault, if any, was in the distribution of the other ingredient. The Appellate Division held that the defendant was immune from liability to its students for the negligence of its administrative servants as well as of its teachers, and this though incompetent servants had been negligently chosen.

Cornell University is a charitable institution. Unger v. Loewy, 236 N. Y. 73, 78, 140 N. E. 201;Butterworth v. Keeler, 219 N. Y. 446, 449,114 N. E. 803;Schloendorff v. Society of New York Hospital, 211 N. Y. 125, 105 N. E. 92,52 L. R. A. (N. S.) 505, Ann. Cas. 1915C, 581. As such, in its relation to its students, it has the benefit of certain immunities not shared by institutions organized for profit. The subject has had its chief consideration in actions against hospitals. Through such litigation, the rule is settled in this state, and generally elsewhere, that a hospital, if public or charitable, is not liable for the negligence of its surgeons or physicians in the treatment of its patients. Schloendorff v. Society of New York Hospital, supra; Phillips v. Buffalo General Hospital, 239 N. Y. 188, 146 N. E. 199. The question is still open whether it is liable to patients for the negligence of servants or administrative agents. The exemption from liability for the acts of surgeons or physicians arises from the nature of the enterprise or undertaking in which the hospital is...

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    ... ... Stine , ... 195 Ind. 350, 144 N.E. 537, 33 A. L. R. 1361, 1369; ... Hamburger v. Cornell University , 240 N.Y ... 328, 148 N.E. 539, 42 A. L. R. 955; St. Mary's ... ...
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    ...of New York Hospital, 211 N.Y. 125, 105 N.E. 92 (1914), a leading decision. Judge Cardozo, in a later case, Hamburger v. Cornell Univ., 240 N.Y. 328, 148 N.E. 539, 543 (1925), stressed that the appropriate basis for the common law doctrine was public policy, observing that "[i]n this state ......
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