Opinion
April, 1934.
Judgment reversed on the law and a new trial granted, costs to appellants to abide the event. It was established that the explosion in the cellar of the house where plaintiffs resided was caused by fumes of naphtha which evidently accumulated there when the water from the sewer backed up into the cellar after a heavy rain. Other evidence indicated that there were fumes or gases similar to naphtha issuing from the manholes of the sewer in this vivinity. The defendant used large quantities of naphtha in cleaning garments. These were contained in tanks and were drawn into the receptacles used for cleaning and returned to other tanks for distillation, through valves and connections that were airtight. After distillation a mud or sludge remained that was released into the sewer. If the process of distillation of the naphtha from the dirt was complete and perfect, as defendant claims, then the sludge released into the sewer contained no naphtha. If, however, the distillation was not complete, then naphtha would escape into the sewer with the sludge. The evidence was not entirely conclusive as to the origin of the naphtha, but other possible sources were reasonably well eliminated. As the case stands, we think it was within the province of the jury to draw the reasonable inference that sludge, from which all of the naphtha had not been distilled, was permitted to go into the sewer; and that such naphtha permeated the water in the cellar of plaintiffs' residence, which was only twenty feet away from the defendant's plant. Therefore, it was error to dismiss the complaint at the close of the plaintiffs' evidence, and the defendant should be called upon to present further proof concerning its acts in releasing sludge from which the naphtha had not been fully removed. Lazansky, P.J., Young, Hagarty and Davis, JJ., concur; Kapper, J., dissents and votes to affirm.