De Rienzo v. Brooklyn Union Gas Co. , 175 N.Y.S.2d 929 ( 1958 )

In an action to recover damages for personal injuries, the appeal

is from a judgment entered on a jury verdict in favor of respondents. Respondents were injured as the result of a flash explosion or flash fire allegedly caused by the ignition of illuminating or manufactured gas leaking from appellant’s gas main. Judgment reversed, without costs, and a new trial granted. The verdict was against the weight of the evidence. It was error for the court to refuse to grant appellant’s request to charge “ that if the jury finds there was no leak of manufactured gas, the verdict must be for the defendant.” Nolan, P. J., Wenzel and Beldoek, JJ., concur; Murphy and Hallinan, JJ., dissent and vote to affirm, with the following memorandum: A fair question of fact as to liability was presented to the jury. The trial court did not refuse the request. The court already had charged that the action was based on a leak in the gas main and reiterated that charge, in response to the request, by observing “ That is a question for you gentlemen.”