The single question presented is whether there was error in a refusal to direct a verdict for the defendant in this action for negligent injury to the infant plaintiff by some one for whom the defendant was responsible, and in refusing to charge that there was no evidence that if the plaintiff received a burn while in the hospital, it was received through negligence оf the defendant, its servants or agents.
There was evidence that the plaintiff’s mother was admitted to the defendant’s hospital, and contracted with it for the care of the infаnt whose birth was expected. The child was born on November 4, 1927. He was in perfect condition at 10 p.m. on November 12, 1927. At 2 a.m. on November 13, when brought to his mother for nursing, a ruptured “bleb” оr broken blister was found on his neck which could have been caused by a burn. The mother was in a room on the first floor of the hospital. The child was kept with fifteen to twenty other babies in a room on the second floor, from which he was brought to the mother to be nursed. In this room, and at all times except when with the mother, he was exclusively in the care and control of the defendant and its employees. The room was visited
In the hospital on November 14 there were three babies, then or shortly thereafter, suffеring from impetigo, a highly contagious disease which sometimes takes a form "called pemphigus neonatorum in which blisters are produced rapidly. These babies were isolated as soon as the impetigo was discovered. Doctors who had other patients at the hospital, who saw the plaintiff after the morning of November 13, and who, at their practice had seen no cases or but one or two cases of pemphigus neonatorum, differed in opinion whether he was suffering from that disease or had received a burn. A skin specialist, who saw the plaintiff shortly after the mother’s return to her home, which was on November 15, testified that, in his opinion, the bleb was a burn and not the disease; while another who testified in reply to an hypothetical question, gave his opinion that it was the disease and not a burn.
The two night nurses were not produced at the trial by the defendant, nor was testimony from them adduced. Both had left the defendant’s employ long before the trial,
In this state of the evidence there was no error in refusing the motion to order a verdict for the defendant and the dеfendant’s request for instructions. It is manifest findings would be warranted that the plaintiff was in the exclusive care and control of the defendant’s servants between 10 p.m. of November 12 and 2 а.m. of November 13, 1927; and that a duty was owed him to use appropriate care to refrain from injury to him •— a duty which did not arise solely from contract with the mother, but was inherent in the аssumption of control by the defendant. See Lowner v. New York, New Haven & Hartford Railroad,
The judge ruled properly that this was not a case of res ipso loquitur, i.e., where the happening of the event, in and of itself, was evidence of negligence. The happening of the formation of a blister did not of itsеlf indicate negligence. It could be explained by the existence of the disease, and by other things consistent with due care in the ordinary course of experience.
The mere existence of a burn was not of itself enough to establish liability; but we cannot properly say that the credible testimony with legitimate inferences in the circumstances could not be found to exclude all but reasonable findings that a burn existed which had been caused by negligent action of the defendant’s servants. Decisions such as Childs v. American Express Co.
Exceptions overruled.