102 N.Y.S. 395 | N.Y. App. Div. | 1907
The question of this case is whether the defendant, as vendor of the apparatus consisting of a sparklet bottle and capsules for use therewith, was chargeable with negligence in the sale thereof.. The plaintiff complained that the defendant at the time of the sale well knew that the bottle was unsafe and dangerous to use, and unfit for the purpose intended, and that the defendant sold and delivered the bottle without disclosure. But at the end of the case he amended his plea by adding after the allegation that the defendant “knew,” the allegation “or in the exercise of reasonable care ought to have known.” There is no allegation or proof of any warranty or representation made by the defendant, so that the case presents a naked sale. It was submitted to the jury on the theory of negligence. The learned court charged without exceptions that there was no direct evidence that the defendant knew anything of the dangers of the article,, and that the doctrine of res ipso loquitur did not apply.
On October 31, 1902, the defendant had the apparatus on sale in
Carbonic acid is a gaseous compound of carbon and oxygen, and aerated beverages like artificial mineral waters,- champagne and beer are charged with it and owe their sparkle1 and effervescence to it. I think that we cannot assume that the sale of an apparatus for such use is the sale of an instrument essentially dangerous like the belladonna in Thomas v. Winchester (6 N. Y. 397) or the nitric acid in Farrant v. Barnes (2 C. B. [N. S.] 553). The distinction is made by Hunt, j., in Loop v. Litchfield (42 N. Y. 351, 359): “ Poison is a dangerous subject. Gunpowder is the same. A torpedo is a dangerous instrument, as is a spring gun, a loaded rifle or the like. They are instruments and articles in their nature calculated to do injury to mankind, and generally intended to accom
In proving the negligence of the defendant in not using reasonable care to discover that the apparatus was unfit for its designated use, the plaintiff cannot rest upon the mere ignorance of the defendant, but must show that the ignorance existed from the absence of due care. (Thomp. Neg. [2d ed.] § 829.) He cannot ask the jury to speculate and to guess what the defendant in the exercise of due care should have done that would have made it cognizant of the defect. He must indicate to the jury what was the omission of the defendant to the breach of its obligation to the-plaintiff. Shear-man & Bedfield on Negligence (5th ed. .§ 57) say of the plaintiff in negligence cases: “ He must, therefore, prove that the defendant has violated some contract or rule of law, thus infringing upon the plaintiff’s known rights, or else he must prove facts and circumstances from which it can be ascertained with reasonable certainty what particular precaution the defendant ought to have taken but did not take. If a defect was not obvious, there must be some' evidence from which it can be inferred how it might and ought to have been discovered. He must also prove facts from winch it can
There is no proof that inspection or examination' of the bottle would have made its defect known to the most careful vendor or even to an expert in his employ. It-does not appear that either one or the other could have ascertained the defect by any test short of those made by the expert witness of the plaintiff. If the fact were otherwise, it was the duty of the plaintiff to give evidence thereof. Andin the absence of all evidence the jury cannot grope in speculation for a test or assume that there was one. (Authorities suprai) In Kilbride v. Carbon, etc., Co. (supra) the court say: “ Though it nowhere appears, as stated, that before this accident the' defendant or any other person engaged in the same business in this country had ever heard of the test method' used in the two foreign countries, yet the only negligence that the jury could have found it guilty of was its failure to adopt that method. No other was called to their attention by the plaintiff as one which the defendant ought to have used, and there was nothing about the tube to even indicate that it ought to have been sent by the defendant to the, National Tube Works to be retested.” The test employed by the expert before he qualified himself to testify consisted in determination of the pressure by discharging some of the plaintiff’s capsules, and some supposedly similar thereto, into' somewhat similar bottles, and also the use of further and scientific methods, more or less technical, but familiar to a chemist or a professor of physics. The conclu'sioh reached was that the pressure “ would be entirely unsafe for any such bottle,” and according to the witness’ “best judgment, a bottle constructed as the one that I had, and the sample before me (the exhibit of the exploded bottle) would break.” The lowest pressure was 190 pounds- and the highest 205, as the result of seven capsules used'. In the course of liis examination this expert testifies: “All the bottles stood the examination,” and that a bottle used was covered with metal, not wicker; but it does not appear that he made any distinction on this account." Some stress is laid by the plaintiff upon the fact
There is another reason for the reversal of this judgment. At the close of the colloquial part of the charge the learned counsel for the respondent, addressing the court, said: “ Let me ask you this. That he cannot escape on the ground that he purchased from, a reputable manufacturer, if he could have known or should have known that the bottle was defective for the use for which it was intended. The Court: That is what I said to them plainly twice.” Ah exception was duly taken. This was the final utterance of the court to the jury. This instruction is erroneous, in that the jury were told that the defendant could not escape on the ground of purchase from a reputable manufacturer, if he could fyave Jcnown, thus eliminating the element of due care. This is not only the final utterance of the court, but-the court then informed the jury that it had already given such instruction, i. e., that such was the- éffect of the instructions heretofore given.
I advise a reversal of the judgment and the granting of a new' trial, costs to abide the-event.
Woodward, Hooker,- Bioh and Miller, JJ., concurred.
Judgment and order reversed and new trial granted, costs to abide the event.