| N.Y. App. Div. | Jan 20, 1972
Judgment unanimously reversed on the law and the facts and a new trial granted, with costs to abide the event. Memorandum: Decedent was electrocuted while using a welder which he purchased from defendant manufacturer. The manual provided with the welder contained instructions on use but no warning of electrical danger. The proof established that decedent was working on a car which was on a bumper jack in violation of the instruction against working on items connected directly to the ground. There was also proof that decedent was lying on damp grass and not wearing a face mask or gloves, in violation of the instructions. In its main charge the court correctly instructed the jury that if it found that the welder was inherently dangerous, the defendant had -a duty to give clear and explicit warning of the danger. (McLaughlin v. Mine Safety Appliances Co., 11 N Y 2d 62.) However, the court erred when pursuant to defendant’s request it charged that plaintiffs could not recover if decedent violated any instruction in the manual, and refused to charge, as requested by plaintiffs, that defendant must show that the violations of the instructions were unreasonable under the facts and circumstances present. This error in stating the law, under the proof in the case, left the jury no alternative but to return a verdict of no cause of action. (Appeal from judgment of Niagara Trial Term dismissing complaint in death action.) Present—Marsh, J. P., Witmer, Moule, Cardamone and Henry,