Citation Numbers: 50 A.D.2d 852
Filed Date: 12/22/1975
Status: Precedential
Modified Date: 1/12/2022
— In an action to recover damages for personal injuries, etc., predicated upon claims of negligence and breach of warranty, defendant Virginia Chemicals Incorporated appeals, as limited by its brief, from so much of an interlocutory judgment of the Supreme Court, Queens County, entered December 4, 1974, after. a jury trial limited to the issue of liability, as (1) is in favor of plaintiffs and against it on the cause of action for breach of warranty upon the jury verdict and (2) adjudges, upon the determination of the trial court, that it is liable to defendant A & E Auto Glass & Service Corporation upon the latter’s cross claim against it for indemnification. Virginia Chemicals also purports to appeal from so much of the judgment as dismisses its third-party complaint. The judgment however, apparently through oversight, fails to contain a provision dismissing the third-party complaint. Interlocutory judgment affirmed insofar as appealed from, with one bill of costs jointly to respondents appearing separately and filing separate briefs. Giving plaintiff Frank Halloran, an automobile mechanic, benefit of every favorable inference which can reasonably be drawn from the facts (see Sagorsky v Malyon, 307 NY 584, 586), he established a prima facie case of breach of warranty; that claim was properly submitted to the jury (see Codling v Paglia, 32 NY2d 330). He established more than the mere happening of an accident; he showed that a canned compressed gas product, known as Charg-A-Car, produced and bottled by Virginia Chemicals, exploded upon normal usage, and was not fit for use. The trial court adequately charged the subject of contributory fault with respect to the cause of action for breach of warranty (see Codling v Paglia, supra); its later refusal to grant Virginia Chemicals’ request to charge on that subject was proper in view of the prior charge. In our opinion, the trial court did not err in excluding evidence that on occasions prior to June 1, 1970, the date of the accident, plaintiff Frank Halloran was seen to use an immersion coil to heat the water containing the can of freon. Such evidence was collateral; to have received it in evidence would have resulted in "a trial within a trial”; such evidence is not probative of what plaintiff did on June 1, 1970. Were the issue of the propriety of the dismissal of the third-party complaint properly before us, we would affirm such dismissal. Virginia Chemicals adduced evidence that,