157 Mich. 643 | Mich. | 1909
{after stating the facts). There was testimony which warranted the jury in finding that it was negligent for defendant to place upon the market for sale, for common domestic use, the particular compound or composition, without notifying the public, by a proper label or otherwise, of its dangerous character. The applicable rule of law is sufficiently stated in the opinion in Clement v. Crosby & Co., 148 Mich. 293, 296, 297 (111 N. W. 745, 10 L. R. A. [N. S.] 588).
The single meritorious question remaining, affecting the right to a recovery by plaintiff, is whether, having testified, without qualification, that there was no fire or flame or hot iron in the range, and that friction caused the compound to ignite, she has failed to prove that defendant’s negligence was the cause of her injury. We shall assume (I think are required to assume) that the jury did not believe that the mere friction arising from spreading the enamel on iron with a brush caused the brush or the compound to ignite, and that they did believe that the brush, or vapor from the compound, reached and was ignited by a flame. It is a matter of common knowledge with those who have used gas ranges that a very small jet of burning gas, not easily observed, will sometimes be found in a burner from which the supply of gas is supposed to be completely turned off. It is true that, in the only count of the declaration under which we consider the plaintiff has the right to recover, she avers that, while putting the composition upon the range—
“ In a careful, prudent, and gentle manner, with a flat bristle brush, the composition or substance suddenly ignited from the friction of spreading it and suddenly be*652 came a burning flame, shooting out and up from plaintiff’s ■gas range aforesaid.”
She also avers that the compound was a highly inflammable, volatile, dangerous mixture, and avers the duty of defendant to have been not to place the substance upon the market without warning as to its dangerous character. The pleading is inartificial and loose; but in essence it avers a specific duty, a negligent breach of that duty, and, as a consequence, an injury. The averment that the flame was caused in a particular way and the testimony in support of the averment, when considered in connection with the testimony, produced by plaintiff, that the compound could not have so ignited, might well have induced a belief that plaintiff was not truthful. On the contrary, and depending upon the multitude of things which affect the judgment as to the truthfulness of a witness, the belief might be engendered that plaintiff honestly supposed there was no flame in or about the range, that the vapor ignited, and that she was truthfully describing the occurrence as it appeared to her. '
Assuming there was a variance between the declaration and the proof upon the point of how ignition was caused, it is not vital. The duty of the defendant is the same, the breach of that duty, as alleged, and resulting injury to the plaintiff — matters to be proven to the satisfaction of the jury. There is no claim made, and in view of all the allegations of the declaration it cannot be supposed, that the defendant was not properly informed concerning the real issue to be tried. No defense which would have been open if the declaration had alleged that plaintiff supposed there was no flame in the stove, but that there must have been an unobserved flame which ignited the vapor or compound, was denied or abridged. Indeed, she was not bound to aver or to prove just what caused the compound to ignite if she was using it as directed and without negligence on her part. It is not claimed that plaintiff was guilty of any negligence contributing to her injury. The
The special questions proposed were inconclusive of the real issue. No error is pointed out in the charge of the court.
We have given careful consideration to the remarks made by the attorney for plaintiff, to which exceptions were taken. Many of them were extravagant. With a single exception, there appears to have been some foundation for them in the testimony. The statement: “She brings this suit, and demurrer after demurrer comes in, and twice we have gone to Lansing in regard to this matter, and now we are down here; it took all those journeys to come here, gentlemen of the jury,” etc. — is one which cannot be defended. Plaintiff herself, unsuccessfully, appealed from the order sustaining the demurrer interposed by the merchant of whom the polish was purchased. It is presumed that such remarks made to a jury are made for the purpose of influencing them. The plaintiff was badly injured. She recovered a verdict for $1,500. The testimony leads to but one conclusion, and that the one which was reached. Under the circumstances, it may be and should be said that defendant was not prejudiced by the remarks of counsel.
The judgment is affirmed.