267 Mass. 501 | Mass. | 1929
This is an action brought by a passenger in a street car to recover for personal injuries received on January 3, 1925, as a result of the ignition and alleged explosion of a quantity of scrap motion picture film. It was tried with others against this defendant, and with cases against John F. Bowditch and the Boston Elevated Railway Company. Before the trial all the parties to the various actions entered into a written stipulation which is printed in the record. The jury returned a verdict for the plaintiff in this case; it is before us on the defendant’s exceptions to the refusal of the trial judge to direct a verdict in its favor, to certain parts of the judge’s charge to the jury, to the failure or refusal to give certain requests for instructions, and to certain rulings upon the admission and exclusion of evidence.
The jury were warranted in finding the following facts: The defendant is a large producer of motion pictures and a distributor of films, but does not manufacture them. It lets the films to exhibitors who, after displaying the pictures, return them. At the time of the accident the defendant employed several girls to inspect the films after their return, in a room provided for the purpose, and, if a film was damaged by wear or use, the girls would cut out the damaged
One John F. Bowditch, a brush manufacturer, used scrap film in his business to make cement for brushes by a certain “melting down” process which involved the use of acetone. For three years before the day of the accident he had used scrap film obtained from other motion picture concerns. About a week before the accident he telephoned one Doherty, the head shipper of the defendant, told him his name, that he used scrap film in his business, and asked for some. Doherty said that he had none on hand but if Bowditch would call up later he would give him some. On the morning of the day of the accident Bowditch telephoned Doherty asking if he had any scrap film on hand, and Doherty replied that he had and would give it to him if he would send over for it. Bowditch then sent his adult son, John C. Bowditch, and one Shirley, an employee, with a note addressed to Doherty saying, “This is the party that you are going to give this waste film to.” Shirley arrived before the younger Bowditch and presented the note to Doherty; he brought with him two burlap bags; he left them on the floor of the corridor which was part of the shipping room, and went out to lunch. While he was out the younger Bowditch arrived and was shown by Doherty to the vaults where the scrap film was kept.
Bowditch testified that he got two burlap bags from his father, and that they had been brought to the defendant’s place of business by Shirley; that they were on the floor in the vault; that he started filling them with scrap film and while he was doing so Doherty was standing in the doorway of the vault; that when he had nearly filled the first bag Shirley came in, but Doherty was not there with Shirley at any time while he (Bowditch) was there; that Shirley went out before he did with a bag full of scrap film; that when he had half filled his bag Doherty came back and stayed until
One of the bags containing the scrap film was taken by Bowditch to his father’s place of business. Shirley, intending to take the other bag to his employer’s place of business, boarded a street car of the Boston Elevated Railway Company. After the doors of the car were closed he placed the bag against the door on the side he entered. From the pit of the car to the main floor was a step of about ten inches. Underneath the floor, with an opening covered by a metal shield in this riser or ten-inch step, was a heater. The bag of scrap film was either against the shield of the heater or close to it. From the point where Shirley boarded the car up to the time the accident occurred the bag had been moved once, but, except for having been lifted and replaced, its position remained unchanged. There was no evidence as to the temperature inside the car just before the accident, but the temperature outside at that time was 28° Fahrenheit. Just before the car reached the Park Street station in the subway the bag burst into flame, causing the injuries to the plaintiff for which this action is brought.
Shirley testified that he heard a grinding and snapping noise; that he looked around and saw a rent or tear about seven inches long near the opening of the bag; that he saw
The general rule is that the manufacturer of an article is not liable for negligence in its manufacture to third persons with whom he has no contractual relations. Davidson v. Nichols, 11 Allen, 514, 518. Lebourdais v. Vitrified Wheel Co. 194 Mass. 341, 343. Pitman v. Lynn Gas & Electric Co. 241 Mass. 322, 323. Christensen v. Bremer, 263 Mass. 129, 136. In the absence of negligence a retail dealer in selling a commodity not inherently dangerous is not liable in tort for its defective condition which causes injury to another. Barrango v. Hinckley Rendering Co. 230 Mass. 93, 94.
In the sale of an article not inherently dangerous, the seller cannot be charged with negligence unless it be shown that he knew or ought to have known of its unsafe and harmful qualities. Kusick v. Thorndike & Hix, Inc. 224 Mass. 413, 414. It is a well recognized exception to this general rule that where an article is recognized as inherently dangerous to life, limb or property, if the seller delivers such an article to another person, without giving notice to that person of its dangerous qualities, and the person to whom it is delivered has no knowledge of such dangerous properties, the seller may be liable to all other persons for injuries which may be reasonably contemplated as likely to result, and which in fact do result to other persons whose negligence did not contribute to the injury. Carter v. Towne, 98 Mass. 567. Wellington v. Downer Kerosene Oil Co. 104 Mass. 64, 67. Jacobs v. New York, New Haven & Hartford Railroad, 212 Mass. 96,
In answer to three special questions the jury found that the scrap film packed as described as it left the defendant’s premises was dangerous to life and property, highly inflammable, and liable to explode. It is settled that whether the defendant was liable in damages to the plaintiff because of the inherently dangerous properties of its article, of which no notice was given, and of which the purchaser had no knowledge, was upon all the evidence presented by the record a question of fact for the jury under appropriate instructions. Thornhill v. Carpenter-Morton Co., supra, at page 598, and cases cited.
The jury were warranted in finding that there had been a delivery of the scrap film to Shirley by Doherty. They reasonably could infer from the testimony of Bowditch and Shirley that Doherty knew the scrap film was being carried away in burlap bags and consented thereto. Although he denied such knowledge, the jury could decide what testimony they would believe. There was ample evidence that the scrap film was highly inflammable, explosive, and inherently dangerous, and that the defendant’s agents had knowledge of its qualities.
Schaefer, the defendant’s district manager at the time of the accident, testified that he knew of the character of the film and that it was inflammable. Doherty testified that he knew the film was a substance concerning which the public authorities had made rules and regulations relative to its handling and that the public officials charged with the responsibility of the public safety made inspections from time to time; and that the defendant had various signs in its place of business prohibiting smoking on the premises. There was evidence that the elder Bowditch knew nothing about the dangerous properties of the film, and did not know that it was inflammable, explosive or dangerous, or that there was any danger from using or carrying it. The younger Bowditch testified that at no time did he have any knowlege that he was carrying anything that was highly inflammable, danger-
It is the contention of the defendant that Doherty had no reason to believe that Bowditch was ignorant of the character of the film, but on the contrary he had reasonable grounds to assume that from Bowditch’s use of the film for three years before the accident he knew of its inflammable qualities; that having such knowledge he would adequately instruct his servants and therefore no notice was necessary to be given them by Doherty. The defendant contends that the test should be whether Doherty, acting as a reasonably careful man, knew or ought to have known that Bowditch was ignorant of the qualities of scrap film. It was for the jury to determine whether, under all the circumstances, Bowditch had or ought to have had such knowledge. The trial judge correctly instructed the jury that the defendant is held to the standard of care which the average reasonably prudent and careful man would exercise, and that it was the province of the jury to determine the standard of care required. The degree of care must be commensurate with the dangerous character of the article. Goupiel v. Grand Trunk Railway, 94 Vt. 337, 343. The case of McKibbin v. F. E. Bax & Co. 79 Neb. 577, relied on by the defendant, is distinguishable from the present case. There was no evidence in that case that the purchaser did not know the dangerous character of the article. Beickert v. G. M. Laboratories, Inc. 242 N. Y. 168, also is distinguishable at least in two respects: (1) that “There was no evidence that the films were of themselves inherently dangerous” (page 172), while in the case at bar there was expert testimony of their dangerous character; and
It is argued that when an intelligent adult asks for an article by name, he represents to the vendor, by implication at least, that he knows of its properties and uses, and that he is a fit person to whom the sale thereof may be made; that unless there is something connected with the transaction or previously known to the vendor indicating that the vendee cannot be safely entrusted with the article, the sale may be made of the article requested without explaining its properties or the manner in which it safely may be used or handled; and that the vendor’s legal duty to such a purchaser extends no further than to give him the identical substance he calls for, and the vendor .is not liable for injuries resulting from the improper use or handling of the article, no matter how little knowledge of its properties or methods of safe and proper handling the purchaser may have had in fact. The cases of Gibson v. Torbert, 115 Iowa, 163, and Beldon v. Hooper, 115 Kans. 678, are cited in support of the propositions so argued.
Those cases are inapplicable to the case at bar because, apart from any negligence arising out of the delivery of an inherently dangerous article, without notice, to a person who had no actual knowledge of its dangerous potentialities, there rested on the defendant an additional legal duty to see that the scrap film was safely disposed of. On the evidence the jury could properly find that there had been a violation of § 23 of the regulations of the fire prevention commissioner relating to motion picture film. Section 23 reads: “In each room used for repairing or piecing together inflammable motion picture film, there shall be one metal can or metal receptacle for each employee engaged in examining or repairing such film, wherein all waste parts and scraps of such film shall be placed and kept covered. The waste parts and
The defendant contends that the words “safely disposed of” in § 23 are “uncertain, vague, and indefinite in their meaning, and hence that part of the regulation is invalid.” This contention cannot be sustained. It is manifest that the
It was agreed at the trial that motion picture film with a nitrocellulose base is a common product, and that there is no difference in films manufactured by different concerns. Manifestly the film in the case at bar comes within § 1 of the regulation. There was evidence from which the jury could properly find that the delivery of the scrap film by Doherty to Shirley in a burlap bag was not a safe disposal of it. The regulations have the force and effect of law. A violation of a statute, ordinance or regulation, although not conclusive, is evidence of negligence on the part of a violator as to all consequences that the statute, ordinance or regulation was intended to prevent. Wright v. Malden & Melrose Railroad, 4 Allen, 283, 290. Lane v. Atlantic Works, 111 Mass. 136, 140. Hanlon v. South Boston Horse Railroad, 129 Mass. 310, 311. Newcomb v. Boston Protective Department, 146 Mass. 596, 600. Nugent v. Boston Consolidated Gas Co. 238 Mass. 221, 233. Gordon v. Bedard, 265 Mass. 408, 411.
The defendant contends that, even if there was evidence
The jury were warranted in finding that, if Doherty delivered the scrap film to Shirley and allowed him to take away this highly inflammable substance in a burlap bag, injurious consequences might reasonably be expected to follow; and that such negligent conduct on the part of Doherty was the proximate cause of the plaintiff’s injuries. There is no intervening cause that would break the chain of causation. All that appears is that the act of a third person intervened and contributed a condition necessary to the
It is the contention of the defendant that its motion for a directed verdict should have been granted upon the ground that the acts of Doherty were not within the scope of his employment. It is conceded by the defendant that Doherty was its head shipper, having been appointed by the district manager who was in authority, that Doherty’s duties were to receive film and to ship it out, and that it was a part of his duty to dispose of the scrap film. ■ The defendant was liable for Doherty’s acts within the real or apparent scope of his authority. Brooks v. Shaw, 197 Mass. 376, 380. O’Leary v. Fash, 245 Mass. 123, 124. C. F. Hovey Co., petitioner, 254 Mass. 551, 555.
Doherty and Schaefer testified that Doherty had authority to dispose of the scrap film only by delivering it to the Film Transfer Company which was paid for carrying it away. There was evidence that on previous occasions Doherty had given small pieces of scrap film to boys who would come and ask for it. Doherty further testified that when he gave the scrap film to the men in Bowditch’s employ he had forgotten about the defendant’s orders to dispose of it only to the Film Transfer Company, and that the violation of his instructions did not occur to him until after the accident happened. The plaintiff was not able directly to contradict this testimony. The jury might well scrutinize the testimony of Schaefer and Doherty which tended to shield the defendant. Conant v. Constantin, 247 Mass. 76, 79. McDonough v. Vozzela, 247 Mass. 552, 558. The jury were not bound to give credit to this testimony even though uncontradicted. Lindenbaum v. New York, New Haven & Hartford Railroad, 197 Mass. 314, 323. Although mere disbelief of testimony is not proof of
The jury could have inferred from the facts that on previous occasions Doherty had disposed of some scrap film to boys, and that the defendant’s books showed only ten entries of payments to the Film Transfer Company during the previous year, although by the defendant’s own testimony all scrap film was delivered to the latter company about once a week, that scrap film had been disposed of to other persons than the Film Transfer Company, and that Doherty’s authority was not so limited. Breen v. Dedham Water Co. 241 Mass. 217, 218. The mere fact that Doherty may have acted in disobedience of the defendant’s order would not absolve the defendant from liability. The disposition of the scrap film was within the general scope of his employment. It ip therefore immaterial that he acted contrary to his instructions. His act in delivering the scrap film to Shirley is deemed to be the act of the defendant. Powell v. Deveney, 3 Cush. 300, 305. Southwick v. Estes, 7 Cush. 385. Wilton v. Middlesex Railroad, 107 Mass. 108, 110. George v. Gobey, 128 Mass. 289, 290. Cain v. Hugh Nawn Contracting Co. 202 Mass. 237, 240.
At the close of the evidence, the defendant filed one hundred and thirty-seven requests for rulings and instructions. Those not argued may be treated as waived, notwithstanding a statement of counsel that all exceptions are relied on. Fay v. Hunt, 190 Mass. 378, 381. Commonwealth v. Dyer, 243 Mass. 472, 508. Silverman v. Rothfarb, 247 Mass. 456, 458. Commonwealth v. Booth, 266 Mass. 80, 82. Smith v. Boston Elevated Railway, 266 Mass. 424, 433. We have examined all the requests for rulings argued. Many of them were contrary to the legal principles applicable to the case as herein previously stated, and were therefore properly refused, as
The requests respecting the authority of Doherty as the defendant’s agent were adequately dealt with in the instructions given. The judge told the jury that the burden was on the plaintiff to prove by a preponderance of the evidence that the defendant was negligent. It was not contended that the plaintiff was not in the exercise of due care. Many requests not given in the language presented were properly covered by the charge. Norwood v. Somerville, 159 Mass. 105, 112. Dunham v. Holmes, 225 Mass. 68, 70, and cases cited. It would serve no useful purpose to refer in detail to all of the requests for rulings. It is sufficient to say that they were covered by the instructions so far as they could properly have been given.
Three exceptions were taken by the defendant to portions of the judge’s charge. He instructed the jury in substance that the words "safely disposed of” in the regulations meant that there was a duty imposed on the defendant after the scrap film left the building, and that they might find it had not been safely disposed of if it were given to a third person. We are of opinion that this instruction was correct. It was for the jury to determine whether upon the facts disclosed a final, safe disposal of the film had been made. This exception must be overruled. The exception to the submission of the special questions to the jury cannot be sustained. Such submission was within the discretion of the judge. Mercier v. Union Street Railway, 234 Mass. 85, 87. Hanneman v. I. Shlivek & Sons, Inc. 235 Mass. 317, 320.
An exception was taken to the instruction that the jury could decide whether or not the substance was likely to explode, and could use in that connection the definitions given by the experts in their testimony. The defendant argues that the judge seemed to treat the definitions as evidence in the case, and allowed the jury to accept them as legal definitions. We do not so understand the instructions. One of the important facts to be determined by the jury was
A large number of exceptions was taken to the admission of evidence. Only those argued by the defendant will be considered, all others are deemed to have been waived. Fay v. Hunt, supra. Commonwealth v. Dyer, supra. Silverman v. Rothfarb, supra. The defendant excepted to rulings admitting evidence of certain experiments made and testified to by three expert witnesses. Whether testimony as to experiments shall be admitted must be largely left to the discretion of the trial judge, and that discretion will not be interfered with unless in its exercise he clearly appears to be wrong. Commonwealth v. Tucker, 189 Mass. 457, 478. Dow v. Bulfinch, 192 Mass. 281, 285. Thornhill v. Carpenter-Morion Co. 220 Mass. 593, 599. Testimony as to experiments made at times other than the time of the main occurrence at issue has frequently been received, and not infrequently rejected in the discretion of the trial judge. Baker v. Harrington, 196 Mass. 339, and cases cited. Although it must appear that the conditions or circumstances were in general the same in the illustrative case and the case in hand, Commonwealth v. Piper, 120
The exception to the taking of a view by the jury cannot be sustained. A jury may be permitted in the discretion of the judge to take a view upon motion of a party. G. L. c. 234, § 35. Commonwealth v. Chance, 174 Mass. 245, 247. Commonwealth v. Dascalakis, 246 Mass. 12, 29. Sargeant v. Traverse Building Trust, ante, 490. The defendant contends that the premises were not in the same condition at the time of the view and the time of the accident. There is nothing in the record as to what changes, if any, had been made, and as there was evidence that the general location of the shipping room, the corridors, and the number of doors were the same at both times, it cannot be said, that there was an abuse of discretion on the part of the judge in permitting the view.
The witness Schaefer testified that one Erbb was not branch manager of the defendant at the time of the accident. Subject to the defendant’s exception, he was asked if at a previous trial he had testified that Erbb was manager at that time. This was competent for the purpose of impeaching his credibility by showing he had made inconsistent statements. G. L. c. 233, § 23. Commonwealth v. Festo, 251 Mass. 275. Commonwealth v. McIntosh, 259 Mass. 388, 390. In any event, the defendant was not prejudiced as the witness answered that he did not remember.
It appeared during the trial that the defendant had been indicted as a result of the accident. The defendant’s counsel asked the judge to state to the jury that the criminal trial
Doherty and Schaefer were asked by counsel for the railway company, subject to the defendant’s exception, if they knew that the interstate commerce commission had established regulations concerning transportation of film in interstate commerce. This evidence was admissible to prove that the agents and servants of the defendant had knowledge of the inflammable character of the film and the proper marking of shipments. Knowledge on the part of the defendant’s servants and agents of the inherently dangerous qualities of the film was an essential element to be proved, and, as this evidence tended to show knowledge on the part of the defendant, the exception must be overruled.
The judge excluded rule 58A of the Boston Elevated Railway Company which reads as follows: “Carrying packages, very long or bulky articles, articles of an explosive nature, such as gasoline, alcohol, gunpowder, dynamite, fireworks, or other articles of a similar nature, or articles which are likely to cause accident, soil clothing or seriously inconvenience passengers, are not to be carried on the cars at any time.” The defendant contends that if this rule had been admitted the jury might have found that, in compliance with it, the conductor should have prevented Shirley from bringing the bag into the car; that his failure to do so was an act of negligence which intervened between the defendant’s conduct and the injuries received by the plaintiff and others, and was of a character not reasonably to have been foreseen by the defendant. The rule was rightly excluded. It was said by Braley, J., in Jackson v. Boston Elevated Railway, 217 Mass. 515, at page 516, that “The carrying of travelling bags or bundles by passengers is an ordinary incident of travel, and unless the carrier can be charged with reasonable notice that
The witness Doherty testified that he disposed of the scrap film weekly to the Film Transfer Company. Counsel for the railway company cross-examined him and asked him what he would do if the transfer company did not call to carry away the film; he replied that he did not know since it never had happened. This evidence was admissible to show the extent of Doherty’s duties with reference to the disposal of the scrap film. He was further questioned along that line. The defendant contends that, after the witness had answered that he did not know what he would do, further questions on that subject should not have been admitted. It is settled that how many times a question may be repeated to a witness within reasonable limits is within the discretion of the presiding judge and is not the subject of exception. Demerritt v. Randall, 116 Mass. 331, 332. Smith v. Boston Elevated Railway, 208 Mass. 186, 187. Commonwealth v. Bosworth, 257 Mass. 212, 214.
The witness Bruff testified that he had twice been employed by the defendant; that he had seen Doherty give scrap film to boys on different occasions, and that he had done so himself in Doherty’s presence. Although evidence of previous violations of the moving picture regulations by Doherty was not admissible to prove a violation on the day of the accident, the evidence was admissible to show the extent of Doherty’s authority with reference to the disposal of the scrap, film. The exceptions to this testimony cannot be sustained.
An examination of all the exceptions that have been argued in this voluminous and somewhat complicated record fails to disclose any error of law in the conduct of the trial.
Exceptions overruled.