Cummerford v. Pepsi-Cola Co.

278 A.D. 658, 102 N.Y.S.2d 595, 1951 N.Y. App. Div. LEXIS 4253

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 13, 1951
• Status: Published

Opinion

In an action to recover damages for personal injuries sustained when a bottle containing carbonated beverage burst, judgment in plaintiff’s favor for $4,000, plus $158.75 costs, against the retailer from whom plaintiff purchased the bottle, was entered upon a verdict of a jury, directed by the trial court at the close of the case and, upon order of the trial court, judgment for $4,000 was entered in the retailer’s favor against the distributor from whom the retailer purchased the bottle. Upon appeals by the retailer and the distributor, judgment reversed upon the law and the facts and a new trial granted, with one bill of costs to appellants to abide the event. The record discloses a sharp issue of fact upon the cause of the bursting of the bottle, whether from a defect inherent in the bottle or solely from a blow struck against the bottle. Determination of the disputed fact must be by the jury. (Civ. Prac. Act, § 457-a; Blum v. Fresh Grown Preserve Corp., 292 N. Y. 241; Loewinthan v. Le Vine, 299 N. Y. 372.) Nolan, P. J., Carswell, Adel, Sneed and MaeCrate, JJ., concur.