
    Bertha Kuval, Respondent, v. Consolidated Gas Company of New York and Another, Appellants. Steve Kuval, Respondent, v. Consolidated Gas Company of New York and Another, Appellants.
    Supreme Court, Appellate Term, First Department,
    June 15, 1925.
    Negligence — contributory negligence — return of plaintiffs to gas-filled apartment for sleep contributory negligence — charge of trial court holding plaintiffs free from contributory negligence, as matter of law, erroneous.
    The return of the plaintiffs, husband and wife, to their gas-filled apartment at bed time for sleep, and the wife’s admission that the comforter which was over her bed smelled of gas constituted contributory negligence, and a charge of the trial court that said plaintiffs were free from contributory negligence, as a matter of law, was erroneous and requires a reversal of the judgment.
    Appeal by defendant, Consolidated Gas Company, from two judgments of the Municipal Court of the City of New York, Borough of Manhattan, Sixth District, entered after a trial by a judge and jury.
    
      H. E. Almberg [H. K. Tobias of counsel], for the appellants.
    
      Gerald S. Schwartz, for the respondents.
   Pee Cubiam:

The charge of the learned trial court that plaintiffs were free from contributory negligence as matter of law was erroneous. Plaintiff and her husband, after finding their apartment, according to their story, filled with gas, returned to it at bed time and slept there through the night. The plaintiff claims that the comforter which was over her bed smelled of gas. These circumstances made the question of contributory negligence one for the jury and the request to so charge should have been granted. \

In view of this error we do not express an opinion relative to other questions presented by the appellants as they deal with testimony and the inferences to be drawn therefrom.

Judgments reversed and new trial ordered, with fifteen dollars costs to appellants in each case to abide the event.

All concur; present, Bijub, McGoldrick and Levy, JJ.  