Heilemann v. Rubel Corp. , 25 N.Y.S.2d 436 ( 1941 )

In an action by a member of the New York city fire department to recover damages for injuries sustained while in the performance of his duties from the explosion of a cylinder containing ammonia gas, judgment for defendant, in accordance with the granting of a motion to dismiss the complaint at the close of the entire ease, reversed on the law and a new trial granted, with costs to abide the event. An issue of fact was created as to whether or not the cylinders were of the 100- or 150-pound type. Testimony of a witness for the plaintiff, who has been inthe division of combustibles of the New York city fire department for twenty years, and who viewed these tanks, is that they were of the 100-pound type. The testimony of the superintendent of the defendant’s claim department and of a salesman who does business with the defendant is that they were of the 150-pound type. The credibility of these witnesses was for the jury in the light of the undisputed fact that plaintiff’s witness is corroborated by the explosion of three such cylinders. This determination is predicated solely upon the issue presented, namely, the sufficiency of the proof of negligence of the defendant. Lazansky, P. J., Hagarty, Adel, Taylor and Close, JJ., concur.