This is an appeal from a judgment in favor of the defendant in a personal injury suit, notwithstanding a verdict in favor of the plaintiff, finding her entitled to $19,566.66 damages.
The action was brought to recover for injuries sustained when a glass coffee maker filled with boiling water and coffee broke, badly burning appellant. The complaint charged negligence in the construction and manufacture of the coffee maker,
At the time the accident occurred, March 18, 1937, appellant owned and operated a restaurant and tavern in ,the city of St. Louis, Missouri. She had been in this business for about nine months, and at the location where the accident occurred for about four and a half months. When she first went into the business she was furnished a set of coffee .makers by a business man who sold her all the coffee she required for her business. In the beginning she used one set of the brewers. When she started in at her new location she needed more, and was furnished a new unit similar to the first. These coffee makers were called “Vaculators.” Each of these units consisted of a two-burner electric stove, and two coffee brewers, each with an upper and a lower bowl. According to directions accompanying them, when they are to be used, the lower bowl is filled with water to a specified height, which is then heated. The upper bowl extends into a funnel or tube which may be fitted into the lower bowl. It is prepared for operation by placing a filter at the opening of thе bowl into the tube or funnel, and then putting in a specified amount of finely ground coffee. As the water in the lower bowl approaches the boiling point, the upper flask is fitted down into the lower bowl, with a rubber gasket around the top of the tube to hold it firm. The expansion of steam in the lower bowl causes the water in it to rise through the tube and filter into the upper bowl, where it comes in contact with the coffee. When no more water will rise, the apparatus is removed from the heat, the coffee is stirred, and as the contents cool, the water runs back through the filter, down the tube into the lower bowl.
There is no dispute over the fact that the original units used by appellant were manufactured and assembled by appellee and by it sold to one Sohm, doing business as the Century Tea and Coffee Company, who in turn delivered them to appellant, to be used by her free of charge as long as she cоntinued to use his products. Appellee included a set of directions for its use with each unit. There was no identifying mark on the glass bowls. Replacements were to be made whenever needed, and one such replacement was made two days before the accident, when Sohm delivered a new upper flask to take the place of one broken by appellant in handling. This was no doubt delivered complete with a new rubber gasket to fit it into the lower bowl, as indicated by the catalogue on replacement parts, and appellant’s testimony that she thought the bushing came with the bowl.
Appellant’s story of the accident was that she was in the kitchen and had begun to prepare four bowls of coffee, following the directions in every respect. She testified that the apparatus was all apparently in good condition, with no apparent cracks or defects. She hаd placed the upper flasks in the lower bowls and was waiting for the water to rise so that she could remove them from the heat, and as she stood near the cabinet on which the units were kept, one of the upper flasks suddenly shot up from its lower bowl, striking her shoulder and spilling the hot water and ground coffee all over her right arm, shoulder, and chest. She grabbed the flask and flung it on the cabinet, screaming for help. There was no one in the kitchen with her when the accident occurred. Various persons in the restaurant and elsewhere around the premises testified that they heard a sharp noise like an еxplosion before appellant’s scream. Appellant was badly burned. Ap-pellee does not question the seriousness nor the permanence of her injuries.
No one, not even appellant herself, saw what actually happened before she was struck — she was not looking at the apparatus when the bowl shot up. After the accident, the upper flask was found on the cabinet where appellant had placed it, with the bowl intact. The tube, broken off below the rubber gasket, was found in the lower bowl. This upper flask was
In view of the fact that the principal question presented by this appeal is as to the applicability of the doctrine, res ipsa lоquitur, to the facts here involved, we deem it unnecessary to state the facts further. Appellant presented testimony tending to prove that appellee made the equipment and sold it, though not to her; and that that equipment exploded, injuring her seriously. She herself testified that she followed directions furnished by appellee for the use of the equipment in every respect; and that that equipment was apparently in good condition, so far as she could see. She made no attempt whatever to prove any defect in the glass, nor did she make any specific charge as to defеctiveness, relying solely on the fact that an accident occurred while she was using the equipment for the uses and in the manner intended, to prove that the equipment must have been defective or the accident would not have occurred.
Appellee moved for a directed verdict аt the close of appellant’s evidence, and again at the close of all the testimony. The court reserved its rulings on both motions, and submitted the cause to the jury, together with a special interrogatory requested by appellee, “Do you find that the coffee brewer, which is alleged to have caused injury to the plaintiff, when used with ordinary care was an inherently or imminently dangerous instrumentality?” The jury answered this interrogatory in the affirmative, found ap-pellee guilty, and ¡assessed the damages at $19,566. Appellee thereupon moved for judgment notwithstanding the verdict, or in the alternative, for a new triаl. Judgment n.o.v. was then entered on appel-lee’s motion.
We agree with appellee that the doctrine of res ipsa loquitur is not applicable to the facts here presented. '“When a thing which causes injury, without fault of the injured person, is shown to be under the exclusive control of the defеndant, and the injury is such as, in the ordinary course of things, does not ■occur if the one having such control uses proper care, it affords reasonable evidence, in the absence of an explanation, that the injury arose from the defendant’s want of care.” San Juan Light Co. v. Requena,
However, appellant argues that the instrumentality was under the sole management and control of appellee at the time the alleged negligence occurred, namely, when it was being constructed— that her charge is of negligence in the construction so that the utensil was unable to withstand the heat to which it had to be subjected in the normal use of it. We think this is negatived by appellant’s own testimony that it had withstood the heat at least two or three times, аnd more likely, over three hundred times. This being the case, the thing does not speak for itself, and appellant must bring in proof of her charge of negligence. It may be that the glass was defective, and that such defect did not immediately disclose itself. If so, it was a matter of proof, not of presumption. Appellant calls our attention to the fact that flasks (introduced as exhibits), said to have come right off the assembly line of ap-pellee’s plant, and used by appellee’s expert witnesses for conducting a test, were of much heavier glass than the broken tube involved in the accident. Howеver, there was no evidence that the thinner
Appellant cites three cases in which courts have held that various types of coffee makers (none similar to the one here involved) were inherently dangerous instrumentalities, hence, that the persons injured by their explosion could recover from their manufacturers in spite of the absence of. privity of contract between them. In the first, Reed & Barton Corp. v. Maas, 1 Cir.,
The second case, Statler v. George A. Ray Mfg. Co.,
The third case, Hoenig v. Central Stamping Co.,
The only similarity between these cases and the one at bar is that all involved various types of coffee makers. All held the manufacturer liable in spite of absence of privity of contract between him and the person injured by the explosion, on the theory that the instrumentality was an inherently dangerous оne, as the jury found the one involved in the case at bar. We think the establishment of this fact does not aid appellant in the case at bar. Of course, if the jury had found that the negative of the proposition was true, in the admitted absence of privity of contract, there could have been no liаbility on the part of ap-pellee to appellant. But establishing that fact of the inherent dangerousness of the instrumentality, does not ipso facto establish the liability of the manufacturer of that instrumentality. It must still be shown that its negligence caused the accident. Under the facts here presented, .with the utensil under the sole domination and control of appellant for some time before the accident, she could not, by merely charging faulty construction, rather than negligence in operation, rely upon the doctrine, of res ipsa loquitur to establish the first essential element of her casе. Appellant is not entitled to the benefits of res ipsa loquitur upon a bald assertion that she followed instructions in every particular, and that the flask was not cracked when she started to use it.
Appellant refers to another type of case involving exploding glass, citing two Missouri cases where accidents were caused by the explosion of bottles containing carbonated beverages. See Stolle v. Anheuser-Busch,
Appellant has devoted considerable attention to the proposition that the Missouri construction of the doctrine of res ipsa loquitur must be followed in the case rather than the Illinois. Since we are convinced that the facts of the case render the doctrine wholly inapplicable, it is unnecessary for us to discuss this question. Here, the evidence offered in support of appellant’s case did not show that she was entitled to the relief prayed, hence the court might well have granted appel-lee’s motion for a directed verdict at the
Judgment affirmed.
Judge TREANOR concurs in the result.
Notes
“That defendant carelessly, negligently and improperly made, manufactured and constructed the aforesaid-coffee maker, vaculator or coffee brewer, whereby