Opinion
January 15, 1915.
Leary Fullerton [ Walter A. Fullerton of counsel], for the appellant.
R.J. Cooper, for the respondent.
In this case the plaintiff was a bartender. While at work at his business a bottle of Silver Spray table water which was kept behind the bar exploded, a piece of glass flew and hit him in the eye, and it became necessary to remove the eye. He here sues the manufacturer and bottler. The complaint alleges that the defendant was negligent in failing to properly inspect the bottle which broke; that the water was highly charged with gas, so that it exerted a pressure of sixty pounds to the square inch; that there were flaws in the bottle and that it was weak and defective. There was evidence tending to show that the bottle was not new but second-hand, and was purchased from a junk dealer. There was evidence that the bottle was lopsided, rough, thick in one place and thin in another, had iron slag in it and blisters on it. The plaintiff was nonsuited at the trial.
The bursting of the bottle was prima facie evidence of negligence. It is for the jury to say, where the manufacturer puts into a bottle a highly-charged gas so that it exerts a pressure of sixty pounds to the square inch, whether he is not bound to make suitable tests of the strength of the bottle. Respondent relies upon the case of Bruckel v. Milhau's Son ( 116 App. Div. 832). But that was a case against the vendor and not against the manufacturer. The case at bar is against the manufacturer.
The judgment should be reversed and a new trial granted.
All concurred, except HOWARD and WOODWARD, JJ., dissenting.
Judgment reversed and new trial granted, with costs to appellant to abide event.