Drucker v. 693 Saratoga Avenue Corp.

245 A.D. 760

Opinion

Action by plaintiff, a tenant in defendant’s apartment house, to recover damages for burns she received in the bathroom of the apartment house. Judgment in her favor entered on the verdict of a jury. Judgment unanimously affirmed, with costs, pursuant to the provision of section 106 of the Civil Practice Act. While we are of opinion that the failure of the defendant to equip its boiler with a safety valve should not have been left to the jury on the question of negligence, in view of the fact that there was no proof of requirement, in law or by custom, that the defendant should have provided such an equipment on the type of hot water system used by it, the error was harmless and in light of the circumstances it should be disregarded pursuant to section 106 of the Civil Practice Act. The doctrine of res ipsa loquitur clearly applied, as defendant concedes on this appeal. Not only did defendant fail to sustain the burden imposed upon it by that doctrine, but it proved affirmatively that the accident was due to the fact that the boiler was fired too heavily ■—■ a matter within its control and for which it was responsible. For the injuries received the verdict was not excessive. Present •—■ Lazansky, P. J., Hagarty, Scudder, Tompkins and Johnston, JJ.