178 A.D. 115 | N.Y. App. Div. | 1917
The defendant bottled and sold soda water to the plaintiff, who kept it in an ice box, but not in direct contact with the ice. On May 25, 1914, the plaintiff carried a bottle from the ice chest into a room with a temperature between eighty and ninety degrees, where at once the bottle exploded and one of his eyes was thereby destroyed. The bottles had been purchased from one McG-inn and were empty champagne bottles. Although the defendant was accustomed to refill bottles, it does not appear how long that in question had been so employed. The plaintiff had received it from defendant some three days before the accident. The plaintiff was constrained to call the defendant as a witness, inasmuch as the court would not receive the examination of the defendant before trial. The defendant explained in what manner he filled and charged the
The judgment dismissing the complaint should be reversed and a new'trial granted, costs to abide the event.
Jerks, P. J., Stapleton, Rich and Blaokmar, JJ., concurred.
Judgment dismissing complaint reversed and new trial . granted, costs to abide the event.