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Haffey v. Generac Portable Products9/22/2005
defective. He further related that when gas vapor escapes out of the top of a gasoline tank it is an indication that the tank was too full, which could lead to liquid escaping and igniting due to the heat from the manifold.
Lastly, Generac's counsel impeached Evans with prior deposition testimony in which Evans had testified that during his initial investigation of the fire he found the 10,000 watt generator less than two feet away from the wall of the building, a fact which, again, is contrary to the recommendations of the generator's product manual.
For the reasons stated, we reject Plaintiffs' contention that the trial court erred in refusing to give the proposed withdrawal instruction. This tendered instruction went too far in withdrawing from consideration evidence relating to the possible misuse of the generator by Plaintiff Haffey. " uch evidence was properly admitted for the consideration of the jury in determining the existence of a defect and the causation of the accident." Earll v. Cons. Alum. Corp., 714 S.W.2d 932, 938 (Mo.App. 1986). Point denied.
The judgment is affirmed.
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