*1 Minor, Ralph HABERLY, a Thomas Father, Ralph Haberly, Natural Adam Friend, Respondent, Guardian Next Corporation, COMPANY, a
The REARDON Appellant. Respondent,
Ralph HABERLY, Adam Corporation, COMPANY, a
The REARDON Appellant.
Nos. Missouri,
Supreme Court
En Banc. 10, 1958.
Nov. *2 Fitzsimmons, Carter,. &
Carter Lee M. Clayton, respondent-ap- for (defendant) pellant. Richardson, Breed,.
Orville David K. Weber, Louis, Harold M. for s- St. respondents.
COIL, Commissioner. above-styled' The trial court ordered the cases jointly. the- consolidated tried first, plaintiff 12-year-old boy (when, was a who, injured) through his father next friend, judgment obtained a verdict and $15,000 damages personal injuries. The other was the father’s action in- expenses probable curred and future companionship by loss reason of his son’s- injuries in which was a verdict. $400 present Inasmuch as all the issues turn on liability of defendant’s for the- personal injuries son, suffered shall hеreinafter treat the cases as thoughi boy only plaintiff. were the Defendant manufactured and sold to var- ious distributors a known as Bon- dex, paint. plaintiff’s a cement As using Bondex, of it right (under circumstances described) causing to be sight. loss of claims Plaintiff defendant was negligent ini lime go contained and then downward into a Bondex started to warn that failing to in kneeling position brick he site of the at the or of and, process, right was to clean *3 eye ran into or came in contact with father, and his Haberly, Ralph A. paint with dripping brush which was then Buffalo, family, plaintiff, lived including Bondex, lodge in causing quantity of it to angles placed He bricks at York. had eye. experienced pain. his He immediate driveway so along sides of his quickly The water father and mother ran appearance. a saw-tooth giving formed rows eye. into the Within an estimated five to- bricks white. paint those He desired to following seven accident the minutes at a a box of Bondex purchased His wife boy hospital and operating was on a table direc- read the Haberly corner store. Mr. under the care of a The how- doctor. paint, then mixed the the box and tions on ever, other sight, was burned that directed. form, water as powder with ability distinguish light than to between words, among “Cau- others: He read these dark, permanently gone. alkalinity of Bon- tion: Inasmuch as father, and had been sensitive The who was irritating to tender or he dex many years a truck fоr an oil com- paddle for mix- driver to use a skin, is advisable pany, never prolonged had before used or and to avoid excessive ing, any it was like outside read at assumed that other He also with skin.” contact 47%; paint. a farm white He had been reared on place, “Portland another cement — knew of its and knew what lime was and (hydrated) calcium oxide 44%—aluminum infer, and, danger, did not materials, strength hut silicate, sealer and tinting 4%— lime or what calcium oxide was Those know that less than curing agents, total 5%.” was, what calcium and did not know oxide writings were the noti- on the box two He lime. said cement contained (user) which defend- Portland the father fications to if known that the Bondex con- he had of cautions wеre in the ant contends nature per lime, either tained at cent he least SO warnings. or taken not have used it or would Haberly, pre- Plaintiff, Ralph T. to precautions absolutely certain that make to painting using a small pare bricks for with went came in contact or none of it away debris scrape leaves or hoe to anyone’s eyes; that the words on them. Plain- had around irritating accumulated might that it box the effect to prepared the bricks tiff, some of any who convey warning a tender skin did not to painting, working ahead of and highly dan- him the Bondex was to father, right feet of his about three to eye or that it gerous if painted the bricks who followed if put an some of it were paint It is a fair infer- minutes; brush. regular only a few that he therein working both father and son were soaps ence detergents or knew that stooped knees or in or on their either skin that that tender irritating to a positions. The called to squatting father thought in which he connection informing that he had missed the son him meaning of the words caution away particular; from a the leaves scraping father further testified that he The box. directing him to return and hoy do so. boy’s eye brick and for the or the not intend did ¡As boy, he rose to paint called with the brush in contact to come understand, and, as we standing any not intend for and did right in his eye, irrespective brush hand at his boy’s held the of whether get in his extending with the bristles Bondex or paint being side used-was a rela- boy, apparently being then in The a"\ right. or tively harmless other harmless position, began swung to arise and kneeling hoy testified that he did mixture. not ' get anything in or intend to stepped his left toward his father want and, negligent as ant was not important note It is here so, a cause failure to warn was not the bristles no direct evidence casualty. contention Defendant’s basic portion any paint brush contacted minds “that reasonable stated Further, the evidence boy’s eyeball. reaching conclusion differ in of Bondex quantity show did not reasonably have defendant could was no entered and there resulted entry the occurrence manner either adduced prevented injury, Bon- nor could it have quantity particulаr warning on by any additional im- accident decisive entering eye was of dex foregoing support the package.” To damage portance determining what *4 are, we conclusion, arguments defendant’s eye the would ensue. think, propo- fairly as these three stated as commonly known Calcium oxide is first, was sitions: that occurrence lime, and, chemically combined foreseeable, boy’s that sudden water, hydroxide. If water forms calcium intervening force movement an constituted resulting hydroxide the to calcium is added reasonably which foresee- also was alkalinity alkaline, highly solution is able; warn secondly, duty to there was no by pH. symbol symbol The is indicated eye anyone danger about tо the condition, pH7 indicates a below neutral know if Bondex would or should that number, the acidity, indicates the lower painful consequences would eye, in the greater acidity, above 7 indicates while result; third, there no top alkalinity o'f progressively greater to a jury reasonably have from which the could pH in calcium oxide solution warning found would that solution, in 12.01. to 13 and of Bondex fact have avoided accident which per cent cal- Portland cement is 50 to occurred. cium oxide. The caustic corrosive and eyes lime had been known effect indicated, As we the accident have years. for 50 or 100 The destructive and, consequently, occurred in New York changes eye an- caused lime or law of deter substantive that state is alkalinity high other material of occur presented. As minative the issues a few minutes and the chemical ac- within expected, parties found have eye tions cornea a con- other, (or any no York case for that New hydroxide centrated of calcium solution the instant matter) factually which is like Plaintiff, are irreversible. as a result of Consequently, province one. our eye, in his has a the Bondex scar over attempt what to determine eye, right of the a drooping cornea of the Appeals Court the facts decide on eyelid, upper right up- and the turns presented. here haveWe reached the con ward and doesn’t track with the left. clusion, upon principles based adjudicated by cases heretofore the New plaintiff’s expert One of said witnesses apply York courts and federal courts not common knowledge law, judgments New York oxide was same as known calcium or affirmed. should be And defendant’s lime. executive vice- said that had president learned The aforestated facts not in prior weeks to trial calcium oxide two dispute. Defendant ' admits the Bon- « lime. total plaintiff’s dex caused blindness in appeal right eye. contention on dispute Defendant’s sole There is likewise in failing the court erred to sustain about the fact under the law of New York, duty motions to after-trial set aside the re- thе defendant had the plain judgments enter judgments adequately warn spective tiff to reasons that defendant defend- user of dan- ger vicinity be in at Bondex the time the Bondex being usual was of it in the used. as a result of And we think a danger expected manner unless that de- found also fendant, case, known known should been or under facts of rea- this sonably to the could have father or unless patent. course, prerequisite Of hazard risk lodging of Bondex in'the eyes duty to the fact that defendant of those warn was noted a wide included varie- ty ways, usual, unusual, unique, peculiar, either had should have bizarre, when and highly dangerous paint might get Bondex was in- apparent, and eyes. to one’s way, as in included the contrary, casе, involving unexpected is no contention to defendant helper plaintiff. knew or the exercise movement such as proper dan- because, care should known the That must true as we see gerous upon human effect was not the éxact manner of the occur- particular accident, rence (the freak as- *5 defendant calls it) which must have been reason- Defendant that it first contends reasonably judgment in the of foreseeable ably the could have that not defendant; jury a inflict liability to put Bondex the which would be to use to rather, it was the risk of Bon- hazard or it, putting father was dex some accidental ini lodging means injury did of to not arise eye helping of one the user or other- reаsonably a been hazard could have which vicinity wise in of user. anticipated. so far as that contention In only concern the manner in which We particular have said that the acci- merit, used, being Bondex it was has no way paint in dental which the entered' exactly being because the Bondex was used plaintiff’s eye under the instant facts was purpose for the intend- in manner and import. Certainly of decisive no that must ed, viz., by painting householder true, where, be at least in those cases as- with surfaces such as bricks of articles here, there was no evidence that because course, But, ordinary paint an brush. hap- manner in which the accident that “the was defendant means pened (either because the brush bristles- being put ordinary when not to its plaintiff’s eyeball thereby contacted dripping Haberly against ran young abrasions, quanti- caused or of the As holding.” brush which his ty lodged plaintiff’s- in understand, defendant both contends accident, eye due to manner or thing or risk of such a hazard both), a highly dangerous- the Bondex had foreseeable, reasonably happening it effect which if would not have had it plaintiff’s and unusual sudden and that eye gotten had into the man- some other the brush constituted an movement into way differently, ner. in which Staled fore- intervening not reasonably act also paint got plaintiff’s eye into could seeable. nothing duty to do with defendant’s the risk get-
to foresee or hazard plaintiff’s eye, ting either agree with unless evidence We cannot only by reasonably reason so-called think the showed contention. defendant, that the as freak occurrence would the Bondex have found could have damage. caused blindness or other serious of Bondex for úse manufacturer however, pointed out, we have householders, could have an As there wa,s likely Bondex was no evidence as to whether the it brush ticipated that eye- with eyes come contact of some those bristles did get into would but, important, help more users, who would be ball whether those of some did, users, except those who would evidence and of would onstrated that occurrence Bondex the cаse of Pease v. Sin- Cir., effect clair tragically had harmful Refining There, 123 A.L.R. the court appeals applied New the facts. York law to approach to evidence The closest Defendant willingness had to advertised its respect was the of one answer furnish, free, certain materials educational hypothet medical witnesses processed schools oil consisting of a ical effect Essex, Plaintiff, display. a teacher in eye had abraded the bristles of the brush York, school, de- high wrote for and ball, the action the Bondex exhibit, purported sent fendant or, the doctor quicker, that much as been ranging oil from show “various forms of in phrased the abrasion “adds to petroleum сrude refined highly the most whatever sult.” There no evidence products.” the two had filled Defendant with eye’s an direct contact “gasoline” bottles labeled “kerosene” re (whether not with brush or white (probably water retain a sulting instant case abrasions), as perform color). Plaintiff intended to occurrence, enough other similar experiment to demonstrate that likely enough or was sodium metal is combined with water cause blindness explosive, had intended highly injury. far serious So supply of very use a small amount of his likely that just goes, order, purpose. sodium metal one’s sufficient Bondex would *6 however, preserve supply of sodium the being reason of to cause blindness metal, opened he the labeled “kero- bottle splashed reasonably therein fore due to the pre- (kerosene being sene” a recognized inexpert sloppy handling of a seeable or poured metal) servative of and sodium clearly brush the user A the metal. ter- contents onto sodium ways. expectable accidental explosion rific and re- occurred apparent that the us And it seems to so lost ceived severe burns and may as freak described occurrence be' liability, the discussing court defendant’s peculiar or or as accident unusual or as pecu- language which we consider used unique only far as as in so as bizarre or liarly applicable questions we have the partiсular may descriptive the be discussing instant case and been way entered the in which demonstrates that court’s view of the foreseeability or hazard risk but that York law: how require exactly foreseeing did “This, therefore, is of those cases one happen. accident would produces human conduct where not unusual reasonably could jury whether unexpected tragic results as defendant, exercise have found that precedents legal startle and amaze. Yet reasonably care, proper could and should experience combine to show human the father anticipated that unless are from un- that bizarre accidents far danger if Bon- adequately warned likely, recovery be- cannot be denied risk eye, there was a lodged in one’s dex uniqueness happenings. cause of who user and those hazard judicial Usually rationalization is couched ex- reasonably have been were and ‘foreseeability,’ largely in terms of but. vicinity pected been in to have it is exact obvious accident which plaintiff) because of (including foreseen, recovery regu- must then must be persons getting of such the likelihood ** * larly (as not). denied be tragic con- with serious and eyes, in their “ resulting. sequences possibly * * * feel the If we defendant at culpable in failing is in somewhat such conclusion accord least to take That simple step warning, law New York is of a then we substantive dem- seе no
865
case, viz.,
Harper
take
from the
one New York
Reming
reason to
case
serious, and,
Co.,
consequences
53,
ton
are
Arms
Misc.
N.Y.S.
serious,
think,
There, plaintiff
injured
there-
unexpected.
while
fore,
negli-
hunting
shell,
the defendant’s
rabbits when 12-gauge
.
issue of
hav
***
jury.
properly
greater explosive
a much
left to
force than
gence
ordinary
shells,
12-gauge
commercial
ex
“So, also,
,
proximate
found
ploded.
Plaintiff had no
neg
the accident from the
the shell he was using
greater
was of
ex
J.,
'Hand,
puts
L.
matter succinct
lect.
plosive force. He had obtained a box of
D.C.
ly
Mars],
in The Mars case [The
gift
had,
shells as a
from a friend who
S.D.N.Y.,
184, when
states
he
turn, received it as gift
an unidenti
from
distinction,
intelligible
line
as
рerson.
fied
Wording
box,
third
ordinary
expect
man
‘What would an
under
Pressure,”
“Remington Proof 7.5 Tons
in
circumstances,
the result?’
to be
all
dicated, to those
significance
who knew
say
merely physi
goes
then
on to
that not
words,
testing
were for
sufficient,
must
cal causation is
but ‘there
purposes only. Plaintiff
did
know the
also be some
element.
has
mental
significance of the
words and was his
consequences
one of those
should have been warned of
,not entirely
range
expecta
outside
danger.
probability,
ordinary
it.’
tion
men view
pointed
Tullgren Amoskeag
But
held
The court
the manufacturer was not
268, 276,
4, 8,
Mfg.
N.H.
133 A.
imperfect
liable because the shells were not
necessary
damage
‘it is not
A.L.R.
or negligently
pur
manufacturеd
probable
as a more rather than less
result
pose
danger
intended and that
orbit of
“The
* * *
anticipated.
Danger
should be
protect only
extended to
those
who
harm,
'consists
the risk
as well as the
by the
been
calling
likelihood of
and a
prudent
normal
man to have been within
anticipation
probable
need not be of more
* * *
intrinsically
that orbit.
dan
.The
occurrence than less.
If there
*7
gerous
required
nature
of
shells
probability
sufficiently
of harm
serious
given by
notice be
the defendant to all
ordinary
precautions
men would take
those
have
who
been an
avoid
then
negligence.
so to do
failure
ticipated
ordinary
to use
their
the shells in
*
**
The test
not of the
balance
expected
manner of their unusual ex
probabilities, but of the existence
some
plosive
force
was
to com
defendant
probability of
moment
sufficient
to induce ply
necessary
with
measure of due care
part
action
avoid it on the
of a reasonable
required
Winchester,
(Thomas
v.
”
[1],
mind.’
104
[3],
F.2d
186
185
supra
397];
County
N.Y.
Genesee
Pa
[6
help
persuade
New York cases which
trons Fire Relief Association v. L. Sonne
our
Payne
aforestated
v.
conclusion are
Sons, supra),
born
or circumstances must
City
York,
393,
of New
277 N.Y.
14 N.E.
which
have existed
would have made the
449,
1495;
115
2d
A.L.R.
Bennett New
v.
giving
warning unnecessary.
such
Rose
Queens
York &
Light
Electric
& Power
Co.,
brock v. General Electric
236 N.Y.
Co.,
334,
219;
294 N.Y.
62 N.E.2d
Genesee 227,
N.E. 571.”
140
bathinette and body membranes and tissues of the burns were caused ing that ordinary course of use that defendant alloy burning magnesium fact that should have contacts intensely caused fire to burn caused the ordinary course of use. sufficiently flame to shoot of blue bursts *8 stand plaintiff she was when far to reach appeals for 5th The court of circuit separated from her room which ing in dismissing complaint an affirmed order hallway. of the Two a the bathroom fully ground thаt on the aware opinion that because were judges preparation that the was not intended inherently dangerous article was not eye, splashed use in the and that suffi- use, “neither its or intended normal in its ciently splash upon it would be caused to is for a nor vendor liable manufacturer her, persons in general and “that use subjec brought about which result benzene, ammonia, lysol, household extraordinary condi to unusual and tion nap[h]tha, agents, and other similar are [2, A dissent tions.” painful 3]. of the fact that consequences aware perhaps serves to Judge Frank Circuit they will result if are used in such manner concepts applicable up point the different get as to allow them to eye, into the but there and to that situation the factual to potential consequences these do not result instant case. in in a discontinuance of their use nor in the they that are unfit for conclusion the use however, important purpose, our For appeals applied put.” to to be the court of which intended is that point many of F.2d 856. and cited principles same supports warning box, last cited constituted substantial agree case theory generally jury reasonably from present and is which a conclusion could have contrary theory of the found that to the father notice in one ingredients the result We think we have reached. Portland Co., supra, Sawyer cement was Pine not tantamount Oil Sales a notice product with New wrong large in accord contained a and not amount lime or of the highly dangerous law. character of the in lodged some of it any next contends an eye. Defendant hazard from the use of Bondex due to its high alkalinity patent it because was Likewise, agree we cannot that this paint” labeled “cement the father knew hold, .court should law, as a matter have known should that cement Bondex, when mixed with water accord dangerous contained lime which would be ing to directions changed liquid into a eyes; further, the words of paint, was itself the kind in of material sufficiently apprised caution themselves appearance anyone would know anyone father of danger because would would have so harmful an effect if know that a substance would irritate eye in an as to cause injury, serious in eyes. skin be would harmful cluding almost instantaneous blindness. true, And that may even it though be noted, As only has been warning conceded, contends, any as defendant was, the box “Caution: as the Inasmuch would, one inor exercise commen alkalinity may irritating should, surate care know that skin, tender or sensitive it advisable to kind getting an probably paddle a mixing, use and to' avoid exces- painful consequences prolonged sive or contact with the skin.” anyone exercising commensurate care a jury reasonably We think could have try avoid getting into his nothing found that there the fore- eye. going language which would cause an ordi- narily intelligent person that the to believe certainly It is common product Bondex was such that a small certainly and it is sub foreign true quantity it lodged could cause stances, specifically directed unless almost immediate blindness. On the con- doctor, should not an trary, jury reasonably could have found attempt Care should be an exercised language that the used was nature .foreign see to enter substances an assurance that everyone that, gen knows Bondex was that speaking, foreign erally substance in an slightly upon irritating effect skin a tender eye—whatever will be—sometimes prolonged after contact. painful pain possibly rеsult and some paint” follow, consequences. “cement
Further, do not serious -does not the words *9 person however, average the fact that necessarily indicate to from the such is common They specific knowledge warning made of a paint was cement. that direct the tragic consequences to be used to the ing the attention to may mean (as case) other similar in the instant surfaces. occur cement cover however, true, as heretofore if Bondex is would not differently noted, contained the information alert one to act far than box other acted, ingredient of Bondex was he would have and to cent wise take ac per a 47 beyond any tion far he The father testified that would have takеn cement. Portland desire, general keep paint cement contained lime. to effect his to know did not he foreign away the mislead- testimony, together with and. other substance from and That eyes. found) of the (if jury effect 868 either sight, evi immediate
Furthermore, own loss of not it at all or would have have used subsequent dence was that his warning made certain in some manner prior trial occurrence changed it that the Bondex not come in contatt did been packages had on Bondex eyes. jury might anyone’s be with Now words, should “Care the addition of testimony any weight, given not have such eyes.” with the contact taken avoid easy for an actor adequacy because it is usual and pausing to consider Without say he had known after the fact that if or to consider warning new of such such, have done so and are such and he would change, we of the fact of full effect so, evidence, thereby avoided and thus and have opinion at however, casualty. testimony, which, The together least, very was evidence. chosen case, jury which the have evidence could with the tending to consider as substantial and as jury determine require sufficient to prove was in to warn adequacy of the failure necessity for and fact a contributed to the loss cause which the instant case. the facts of warning under plaintiff’s eye. necessity That our conclusion jury not It is true that one or a this warning in adequacy of the for and plain- certainly at conclusion that jury arrive case should be decided father, adequately if warned tiff’s courts is view the New consequences Co., tragic lodging Bondex Refining v. Sinclair attested Pease son, Crook, acted that Henry would have so his supra, [3]; F.2d 186 v. 104 oc- 642; the instant not have 19, Rose accident would App.Div. 195 N.Y.S. 202 Always present the Co., curred. there must 236 N.Y. Electric brock v. General ; forecasting 571, element of what the father’s 227, 574 v. Fred 140 N.E. Moss [2-4] under, See another’s conduct would have been Inc., Sup., 922. 29 N.Y.S.2d Perlberg, supposed 352 circumstances. Refining Atlantic Maize v. also [4, 55, 850, 5], 160 51, 41 A.2d Pa. language Judge The Learned Hand 449; & Gamble Hardy Proctor A.L.R. Shipping Zinnel United Board States 124; Harper & Co., Cir., Mfg. 47, Cir., Corp., Emergency Flеet F.2d 28.7, Torts, Vol. James, Law of § relied on negligence a case in which the 1547; p. 41 Va.L.Rev. provide rope in guard failure to vessel, is that even a certain on board a proposition final Defendant's apropos: adequately “There warn of course remains failed negligently might whether also said from which have no evidence there was fail- that the fault caused the loss. About found that such reasonably could agree pos- we Defend- no certain conclusion was accident. cause of ure awas could, Nobody the evidence sible. in the nature of under ant’s contention things, knowl- be sure that the intestate would have or lack of the father’s or, not, rope, danger of Bon- seized the if he had ingredients edge of the stopped body. way accident. would But dex did case, dealing with a words, have oc- criminal nor are accident would In other justified, certainty impossible, where warning what was we irrespective of curred upon insisting otherwise say box or it. We cannot rope that a father. likelihood three given to the been feet above the deck made the timber *10 not noted, would saved the seaman.” father tes As we warned, effect, he been tified say dangerous when should as a highly matter of almost law that there was no could cause likelihood a dif~
869 alert the warning, ferent one calculated to We have no doubt that it was for a Bondex to great danger father of whether, to the decide but for fail defendant’s ac- ure eyes, one’s not have avoided would to adequately warn, plaintiff’s injury causation, questions cer- On if cident. not have occurred. The here cases required, tainty jury, cited to be it is the is indicate that our ac conclusion is in court, upon it. cord must insist with the law of New Howard York. Corp. Stores Pope, v. 110, 1 150 N.Y.2d 792, N.Y.S.2d because the agree And we do not 134 63; v. N.E.2d Ward get- father care to avoid Consolidated was bound to use Co., Inc., Iron & Metal 275 App.Div. paint eye, irrespective 857, ting in his son’s 88; 89 N.Y.S. Bennett N. irrespective Queens Y. & paint kind Light Electric & Power circumstances, supra, the occur- follows that 62 219; City N.E.2d O’Neill v. happened Jervis, event Port rence would have 423, 253 434, N.Y. 171 N.E. brush boy’s movement into the See also Inc., Bengue, Martin v. supra, An il- just same. 136 occurred A.2d [9, 10]; 634 Harper & James, fallacy of lustration demonstrate The Law Torts, p. 20.2, Vol. § such It reasoning. seq., common et again see Hardy v. Proc tor proclivity that it a of children & natural Mfg. Co., Gamble supra, 209 F.2d a upon being proximity [2], insist in close performing tasks support To a painting.
as should be conceded failure warn was not the cause father, accident, great painting, while would exercise de- fendant relies on two New keep paint care to In off the child’s cases. Bloom v. Gimbel Inc., clothes,' certainly Bros. away skin, Sup., from 843, plaintiff N.Y.S.2d bought liquid eyes. of his floor If the polish which ignited when clothes, being child’s ruined or used in his would be apartmеnt. He sued the cleaned; paint got would have seller and the to be if manufacturer. The New skin, York City Ad- on the child’s irri- might the skin be Code, ministrative required C19-59.0 § tated and would have to cleaned be containers of products inflammable turpentine substance; some other labeled, “CAUTION —INFLAMMABLE would, events, keep the father in all try DO MIXTURE. NOT USE NEAR FIRE away eyes from the child’s be- OR FLAME.” The label on pol- cause floor he would .know that otherwise in- ish container actually read, jurious consequences “Caution. In- and that ensue flammable Mixture. Keep Away might require child From medical attention. Open Flame.” The law, recovery court say denied follows, But to a matter of and held that the manufacturer was in sub- simply always because a father would compliance stantial requirement with the required care, great to exercise even and, the Code in any event, slight vari- care, keep paint eyes, out of child’s ation wording and in the fact that preventive means that father’s measures capital caution was not in letters was not would have been no different he had been accident, the cause of the because the evi- warned that if a blob in his dence showed that aware eye might mean immediate blind- child’s need cross ventilation and the ex- ness, disregard the is to of the sit- realities act the combustion was not es- uation. The common-sense answer-to de- Clearly tablished. sup- case does not given argument fendant’s ade- port position. defendant’s quate warning, a father either would not Oliver, App.Div. 449, or would make as use Bondex certain Gralton 101 N.Y.S.2d humanly possible that no Bondex would en- automobile eyes. anyone’s bumper ter into the skidded rear stopped *11 g70 locked, LEEDY,
car, plaintiff, JJ., bumpers and STORCKMAN and dis- automobile, volun sent. passenger in defendant’s he bumpers. After
tarily disengaged the he was stand still had finished and while HYDE, opinion J., separate dissents in car, automobiles, a third between filed. of rear codefendant, ran into driven with it causing to collide car HYDE, Judge (dissenting). injure plaintiff. and opinion of respectfully I dissent from in the car Plaintiff the driver sued herein, C., COIL, neg- I because think and riding (defendant) which he was plaintiff his ligence of and father collided of the automobile driver plaintiff’s injury. I do sole cause of The riding. car in which was he think of con- and statement the directions any, negligence, if court held paint anything tents on the box prox- anot defendant was a remote in plaintiff’s putting paint do with injury and that plaintiff’s imate cause it plaintiff’s eye. Plaintiff’s father knew an- could not defendant paint put any would be harmful to kind sliding in ticipated negligence that his intending plaintiff’s eye in and was not he produce subse- ahead him would the car purpose. He use this for Irrespective of plaintiff. quent harm to put did not be- this in in that case may think of \whatwe the result anything or state- in the directions opin- presented, of the we are on the facts plain- contents; ment instead it applicability to it has no decisive ion handling tiff’s his carelessness in situation. factual way brush and carelessness in the working. and his father were Missouri on four relies Defendant also Machinery cases, viz., Tayer v. York Ice liability subject A manufacturer is 240, 117 Corp., 342 Mo. S.W.2d bodily prod- harm the use his caused & Robins v. G. S. 1414; A.L.R. McClaren uct, purpose the manner for the Demp- 856; 653, 162 S.W.2d 349 Mo. supplied, exercise fails to he Stores, supra, and sey Virginia Dare give reasonable care to the user informa- Mabrey, 154 S.W.2d 348 Mo. Smith has which he and which real- tion he should cases Again, have examined those we necessary ize would be to make such use opinion they are are of the and we Torts, (Restatement safe. Seс. Sec. easily for the reason distinguishable. Both However, g.) 388 and comment (cid:127) thus, they cases and are Missouri view, liability my that this ex- should not be opin- event, controlling, and this tended to make a manufacturer liable already refrain from long, ion is too way negligence his users use of them. discussion product seems to me that this impose in this liability have to be done to in each case affirmed. judgment The words, my In other case. view is a manufacturer in- while liable for PER CURIAM. product juries caused the use of purpose manner for the for which COIL, C., opinion by foregoing supplied, negligence he is not liable for it is opinion court en adopted of the short, who use it. In those warrants B.anc. safety of his for its intended not warrant that all but does users will HOLLINGSWORTH, J.,C. and WEST- negligence using without act it. DALTON, JJ., con- HUES, EAGER judgments. I reverse these cur.