Bell v. Consolidated Gas, Electric Light, Heat & Power Co.

PATTERSON, J. We are unable to discover that the main facts appearing upon this record differ from those upon which the case was decided on a prior appeal by the appellate division in the Second department. 36 App. Div. 242, 56 N. Y. Supp. 780. It was there Feld that the negligence of the engineer employed by the defendant was that of a fellow servant of the plaintiff’s intestate, and that in the absence of evidence that an expert, other than an ordinary ■engineer, was needed in removing and replacing caps connected with the boiler tubes, and in making the test of-the safety of the boiler after cleaning it, the defendant cannot be held responsible. We are constrained to follow the decision of the Second department, without criticising it, but are convinced that the case is one which should be passed upon by the court of appeals. The evidence on the present record does not support plaintiff’s contention that the •defendant was - guilty of negligence in employing an unskillful or incompetent engineer. The judgment must be affirmed, with costs. All concur.