Opinion
June 15, 1925.
H.E. Almberg [ H.K. Tobias of counsel], for the appellants.
Gerald S. Schwartz, for the respondents.
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, BIJUR, McGOLDRICK and LEVY, JJ.