Opinion
June, 1936.
Present — Sears, P.J., Edgcomb, Thompson, Crosby and Lewis, JJ.
Judgment reversed on the law and a new trial granted, with costs to the appellants to abide the event. Memorandum: We find evidence from which a jury could have determined that by using a gasoline blow torch to remove paint from woodwork which was close to dry, loose shingles, the defendant's employees failed to exercise care commensurate with the risk which was apparent and of which they had been warned. Giving to the plaintiffs the benefit of inferences fairly to be drawn from the proof, and testing the evidence by the standard of reasonable prudence, a question of fact was presented whether the fire in question resulted from lack of care by the defendant's employees in using a gasoline torch under conditions then existing. All concur. (The judgment dismisses the complaint in an action to compel defendant to indemnify plaintiffs for money paid under fire insurance policy.)