Cornell v. J. J. Newberry Co.

250 A.D. 816, 294 N.Y.S. 164, 1937 N.Y. App. Div. LEXIS 9106

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 19, 1937
• Status: Published

Opinion

Appeal from a judgment in favor of the plaintiff, and from an order denying motion for a new trial. The plaintiff was employed by the defendant in its store at Saratoga Springs. The store was a large one, with a basement thereunder, and a boiler room in the basement set apart by a wall. Gas escaped from a very small aperture in a pipe in the boiler room, and found its way into other parts of the premises. Repeated attempts had been made, by expert workmen, to locate the place where the gas was escaping, but without success. The odor of gas was first recognized about the first of October, 1934, and was not completely removed until May of the following year. The action was tried on the theory of negligence. The plaintiff was a saleswoman, working at different counters at different times in the store, and contends that her health was injured by the presence of the gas. She first complained of the gas about October first, and again about May first, and continued in her employment until the latter part of August, 1935. The verdict is against the weight of the evidence on the questions of the negligence of the defendant, the causal relation between the presence of gas and plaintiff’s sickness, and the assumption of risk by the plaintiff. Judgment and order reversed, on the facts, and new trial granted, with costs to the appellant to abide the event; the verdict being against the weight of the evidence on the negligence of the defendant, on the assumption of risk, and causal relation. Hill, P. J., Rhodes, MeNamee, Crapser and Heffernan, JJ., concur.