Gallagher v. Sears Roebuck & Co.

• Decision Date: 01 April 1957
• Citation: 3 A.D.2d 835,160 N.Y.S.2d 1016
• Parties: James M. GALLAGHER, Appellant, v. SEARS ROEBUCK & CO., Inc., Respondent.
• Court: New York Supreme Court — Appellate Division

Page 1016

160 N.Y.S.2d 1016

3 A.D.2d 835

James M. GALLAGHER, Appellant, v. SEARS ROEBUCK & CO., Inc., Respondent.

Supreme Court, Appellate Division, Second Department.

April 1, 1957.

Archie V. Latto, New York City, for appellant. John V. Higgins, New York City, on the brief.

Walter H. Liebman, New York City, for respondent. Julian S. Perlman, New York City, on the brief.

Before BELDOCK, Acting P. J., and MURPHY, UGHETTA, HALLINAN and KLEINFELD, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, the appeal is from a judgment dismissing the complaint at the close of plaintiff's case and from an order granting a motion to dismiss the complaint on the ground that plaintiff was guilty of contributory negligence as a matter of law.

After defendant overhauled the unit, motor and compressor head of plaintiff's refrigerator, purchased from defendant about eight years before, defendant reinstalled the parts therein. Within a half hour, plaintiff's wife noticed an odor of gas. As the result of a telephone call to plaintiff, then at his office, she pulled out the electric plug, opened the kitchen windows, shut the kitchen door, and went with her three children to another part of the house. When plaintiff arrived home about an hour or an hour and a half later, he opened the refrigerator door, put his head close to the door jamb of the refrigerator to find out where the leak was, and suffered injuries as the result of inhalation of sulphur dioxide gas, used as the refrigerant.

Judgment reversed and new trial granted, with costs to abide the event.

In our opinion, the question of contributory negligence was one of fact. Schmeer v. Gas Light Co. of Syracuse, 147 N.Y. 529, 42 N.E. 202, 30 L.R.A. 653; Lee v. Troy Citizens' Gas-light Co., 98 N.Y. 115.

Appeal from order dismissed, without costs.

No such order is printed in the record. BELDOCK, Acting P. J., and HALLINAN and KLEINFELD, JJ., concur.

MURPHY and UGHETTA, JJ., concur insofar as the appeal from the order is dismissed, but dissent insofar as the judgment is reversed and vote to affirm the judgment, with the following memorandum:

About a half hour after the refrigerator had been repaired, plaintiff's wife called him at his office and told him gas was escaping. He advised her to pull the plug of the refrigerator, open the kitchen windows, close the door, and keep herself and her children in the front part of the house. An hour or so later, plaintiff came home and, even before...