Lofgren v. Protane Corp.

259 A.D. 785, 18 N.Y.S.2d 571, 1940 N.Y. App. Div. LEXIS 6627

Opinion

Judgment affirmed, with costs. All concur, except Harris and McCurn, JJ., who dissent and vote for reversal in the following memorandum: The following facts, if they exist, may be proven under the complaint as now before us: The explosion came about through the negligence of the agent of the defendant, the chance of such an explosion occurring being known to him and not known to the plaintiffs. The defendant’s agent could have warned the plaintiffs of the probability of the explosion, and in not doing so he placed them under a risk of injury that was not normal, or not necessary, to their occupation, nor to the performance of their duties. These facts would give rise to liability on the part of the defendant to the plaintiffs. (Raymond v. Republic Light, Heat & Power Co., Inc., 236 App. Div. 880; affd., 262 N. Y. 498; Meiers v. Koch Brewery, 229 id. 10.) (The judgment dismisses the complaint in an action by volunteer firemen for claimed negligent starting of a fire.) Present — ■ Crosby, P. J., Taylor, Dowling, Harris and McCurn, JJ.