256 A.D. 1096 | N.Y. App. Div. | 1939
In an action by a wife to recover damages for personal injuries sustained as the result of dye getting into her eye, and by her husband for loss of services and expenses, judgment for the defendants reversed on the law and a new trial granted, with costs to appeUants to abide the event. The learned trial court misunderstood the significance of the third element necessary to estabHsh a cause of action, such as the present one,- as set forth in Karr v. Inecto, Inc. (247 N. Y. 360, 363), viz.: “ * * * and third, that the defendant was negHgent in putting upon the market a dangerous and poisonous product.” Actionable negHgence resulted from putting such a product on the market, and it was not necessary for the plaintiffs to estabHsh negHgence in some other or independent way. Of course, if a patron is apprised of the dangerous and poisonous substance prior to its appHcation, she assumes the risk. Such a defense, however, was not presented in this ease. It was error, therefore, to refuse to charge that if the evidence estabHshed that the Hquid was dangerous and poisonous, with injury foHowing contact, the jury might, without further evidence as to how the particular bottle happened to contain a dangerous and poisonous Hquid, infer that such a condition could not have arisen without fault on the part of the employees of the defendants. (Karr v. Inecto, Inc., supra, p. 363.) It was unnecessary for plaintiffs, as an essential part of their cause of action, to estabHsh by direct proof that the defendants had actually
