Opinion
March 15, 1960
Judgment unanimously reversed, on the law and on the facts, and in the exercise of discretion, and a new trial ordered, with costs to abide the event. The evidence fails to establish how the fire was caused or that the fire was caused by defendant's negligence. It may be that upon proper proof the plaintiff will be able to establish that the available fire fighting equipment was not in proper order; that the defendant was under a duty to provide adequate fire fighting equipment and to acquaint the campers with the appropriate procedures in combatting emergency fires. Since the case must be retried, it is appropriate to note that we consider the charge inadequate in that it did not advise the jury of the duties it was claimed the defendant had violated; further, we believe the verdict to be excessive. In passing, it is observed that there was no explanation for the failure by either side to produce the tentmate, Fay, a witness, it would seem, who could provide significant information as to what happened.
Concur — Breitel, J.P., M.M. Frank, McNally, Stevens and Bastow, JJ.