Opinion
January 2, 1945.
Action to recover damages for personal injuries claimed to have resulted from the negligence of an employee of defendant in striking with a hammer the metal rim of a truck tire which was being put on by the plaintiff, an employee of a gasoline station, causing the tire to explode and injure plaintiff. Judgment in favor of the plaintiff reversed on the law and the facts, with costs, and the complaint dismissed on the law, with costs, upon the ground that the plaintiff failed to establish any actionable negligence on the part of the employee of the defendant. The record shows that it was common practice to use a hammer in the replacement of a tire and rim under the circumstances of the case. Hagarty, Acting P.J., Carswell, Johnston, Adel and Aldrich, JJ., concur.