
    Jacob Willey, Jr., Appellant, v. Andrew Mynderse, Respondent.
    Third Department,
    January 15, 1915.
    ¡Negligence — explosion of water bottle charged with gas—liability of manufacturer or bottler — prima facie evidence of failure to inspect.
    Where, in an action by a bartender against a manufacturer and bottler for personal injuries alleged to have been sustained from the explosion of a glass bottle, it appears that the bottle in question, although defective, was filled with water so charged that it exerted a pressure of sixty pounds to the square inch, the bursting of the bottle constitutes prima facie evidence of negligence on the part of the defendant in failing to make a proper inspection.
    Howard and Woodward, JJ., dissented.
    Appeal by the plaintiff, Jacob Willey, Jr., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Schenectady on the 1st day of October, 1913, upon a dismissal of the complaint by direction of the court at the close of the plaintiff’s case.
    
      Leary & Fullerton [ Walter A. Fullerton of counsel], for the appellant.
    
      R. J. Cooper, for the respondent.
   Smith, P. J.:

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. Bespondent 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.  