220 A.D. 173, Underhill v. Major

Citation220 A.D. 173
Party NameCLARA UNDERHILL, an Infant, by HELEN UNDERHILL DOLL, Her Guardian ad Litem, Respondent, v. FRANK MAJOR, Appellant.
Case DateMarch 09, 1927
CourtNew York Supreme Court Appelate Division, Fourth Department

Page 173

220 A.D. 173

CLARA UNDERHILL, an Infant, by HELEN UNDERHILL DOLL, Her Guardian ad Litem, Respondent,

v.

FRANK MAJOR, Appellant.

Supreme Court of New York, Fourth Department.

March 9, 1927

Page 174

APPEAL by the defendant, Frank Major, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 10th day of May, 1926, upon the verdict of a jury for $2,500, and also from an order entered in said clerk's office on the 9th day of June, 1926, denying defendant's motion for a new trial made upon the minutes.

COUNSEL

White & Rugg [Ford White of counsel], for the appellant.

Charles W. Strong, for the respondent.

HUBBS, P. J.

The defendant operated a gas service station. His wife and daughter tended the gas pump and served customers. On the evening of December 1, 1923, the plaintiff, then about seventeen years of age, was at the defendant's home. Mr. Spoth and Mr. Trost were also present. As they were about to leave Mr. Spoth stated that he needed some gasoline. He and Mr. Trost, the plaintiff and the defendant's daughter got into the car driven by Mr. Spoth and drove to the gasoline pump, about 200 feet from the house. The plaintiff and the defendant's daughter sat on the back seat. The plaintiff had a kerosene oil lantern, which was turned down. The car was stopped at the pump and the defendant's daughter got out and asked for the lantern so that she could see to unlock the pump. The plaintiff handed her the lantern, she unlocked the pump and put on the handle with which to operate it. Mr. Trost took up the cushion from the front seat and unscrewed the cap on the gasoline tank, which was under the front seat. He then asked for a light to see how much gasoline he needed. The defendant's daughter handed him the lantern and he measured the gasoline in the tank with a stick, but did not remove the lantern. 'Then Isabelle [the defendant's daughter] handed the hose to him and he put it in the gas tank and started, turned the crank, and this young fellow [Mr. Trost] pulled the hose out quick and threw it back on me. * * * Just as soon as the gas started to go into the tank the light and the gas ignited

Page 175

and everything was afire, everything was ablaze then.' The plaintiff had remained on the back seat, and was seriously burned.

The defendant's version of what took place is...

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