249 A.D. 835 | N.Y. App. Div. | 1937
Action to recover damages for personal injuries alleged to have been sustained by the plaintiff wife when the foot rest of a collapsible beach chair, manufactured by the impleaded defendant, collapsed as she sat in the chair in the store of defendant Sears, Roebuck & Co., Inc., where it was on display, and by her husband for loss of her services. Defendants appeal from a judgment entered upon an award in the sum of $1,500 to plaintiff wife, and the sum of $750 to plaintiff husband, against defendant Sears, Roebuck & Co., Inc., which has judgment over for the aggregate amount of these two sums against the impleaded defendant, Telescope Folding Furniture Co., after 'a trial without a jury. There were no findings of fact.. Judgment reversed on the law, with costs, and the complaint dismissed, with costs. In our opinion neither defendant is liable on the theory of negligence or breach of an implied warranty. The chair was not inherently dangerous and the manufacturer is not liable because of the fact that it is possible for one using the chair to be injured. All that the manufacturer is required to do is to guard against injury that is reasonably probable. Plaintiffs failed to establish a cause of action against either defendant. Johnston, Adel and Taylor, JJ., concur; Hagarty, J., concurs for reversal of the judgment and the dismissal of the complaint as to the impleaded defendant, Telescope Folding Furniture Co., but dissents and votes for affirmance as to defendant Sears, Roebuck & Co., Inc.; Lazansky, P. J., dissents and votes to affirm. The experiences of the trial justice with the chair and an examination of it by this court indicate that the trial court was fully justified in finding that the chair was not reasonably safe for use by a customer. Defendant Sears, Roebuck & Co., Inc., may hold the impleaded defendant liable for a breach of warranty of merchantability.
