Opinion
July 10, 1967
Judgment of the Supreme Court, Queens County, entered June 29, 1966, reversed on the law, and new trial ordered in the interests of justice, with costs to abide the event. No questions of fact have been considered. Upon allegations of negligence and breach of warranty in the manufacture and sale of a fabric used in the making of pajamas purchased by plaintiff wife, plaintiffs offered evidence to prove that the fabric was dangerously flammable and that, while wearing the pajamas in close proximity to a gas range on which plaintiff wife was heating coffee, her pajamas caught fire. Defendant Lowenstein, among other things, challenged the wife's claim that she was wearing pajamas at the time of the fire. After the jury had retired, they returned for instructions concerning the wife's claim that she had been wearing the pajamas at that time, the foreman stating that three jurors did not believe her testimony on that issue. The learned trial court thereupon instructed the jury that the wife was wearing the pajamas at the time of the fire and, in effect, took that issue from the jury. Though the wife suffered very serious injuries, and though defendant Lowenstein's counsel's making of unnecessary objections fell short of the professional conduct that we anticipate from members of the Bar, and thus encouraged the learned trial court to engage in personal clashes with him, nevertheless the judgment cannot stand because of the prejudicial instruction. Last, we note that, in reversing the judgment, we reject defendant Lowenstein's argument that it cannot be held liable because, in manufacturing the fabric used in making the pajamas, it complied with the flammability-testing method prescribed by law (U.S. Code, tit. 15, § 1191; General Business Law, § 502). While a defendant's compliance with a statute "is some evidence of the exercise of due care" ( Phillips v. Roux Labs., 286 App. Div. 549, 551), it does not preclude a conclusion that he was negligent (see 2 Harper James, The Law of Torts, § 17.6, p. 1014 [1956]). Brennan, Rabin, Hopkins and Munder, JJ., concur; Christ, Acting P.J., dissents and votes to affirm the judgment.