44 Del. 39 | Del. Super. Ct. | 1947
In this case the plaintiff does not rely upon the doctrine of res ipso loquitur. It concedes, as was held in Slack v. Premier-Pabst Corp., 1 Terry (40 Del.) 97, 5 A. 2d 516, that the rule “is not applied except where the transaction was in the exclusive management of the defendant, and all of the elements of the occurrence within his control, and the result is so unaccountable that the defendant’s negligence as a proximate cause of injury is the only fair inference to be drawn from the circumstances. ”
It relies on an exception to the general rule as stated in Cooley on Torts, 4th Ed. § 498, that
“a contractor, manufacturer, vendor or furnisher of an article is not liable to third parties who have no contractual relations with him for negligence in the construction, manufacture or sale of such article.”
There are certain exceptions to this general rule and they may be divided into two general classes, viz., (1) where the thing causing the injury is imminently dangerous in kind, and (2) where the thing causing the injury is not imminently dangerous in kind, but is rendered dangerous by reason of some defect.
The plaintiff, in its brief, refers to an increasing restriction of the general rule, by modern cases, recognizing exceptions, and as illustrative it refers to the numerous annotations in A.L.R., the first of which appears in Volume 17 at 672, and the latest in Volume 142 at 1490, and to the following cases: Heckel v. Ford Motor Co., 101 N. J. L. 385, 128 A. 242, 39 A. L. R. 989; Clark v. Standard Sanitary Mfg. Co., 149 A. 828, 8 N. J. Misc. 284, and Smith v. Peerless Glass Co., Inc., 259 N. Y. 292, 181 N. E. 576, reargument denied 259 N. Y. 664, 182 N. E. 225. I gather from the plaintiff’s argument that it contends that a glass jar, under
In the declaration it is alleged that the jar “was carelessly and negligently manufactured and constructed by the defendant so that there was a flaw or defect in the glass constituting the ridge or raised portion of the jar.” The plaintiff contends that this allegation is sufficient to disclose to the defendant the nature of the case which it must meet. It denies the contention of the defendant that the allegation of negligence is merely á conclusion. It says in its brief that the allegation contains “two facts; first the defendant manufactured the glass jar; second that the glass of the jar, as a result of defendant’s acts contained a flaw.” This argument would merit consideration if applied in a case where it clearly appeared that the details of the defect which brought about the plaintiff’s injuries were either known by, or available to the defendant. This was the situation in Campbell v. Walker, 1 Boyce (24 Del.) 580, 76 A. 475. There, in one of the counts, the declaration alleged in substance the fact of a collision of the defendant’s automobile with the vehicle in which the plaintiff was riding, and averred that the collision and consequent injury were due to the negligence of the defendant, in that the defendant was blind in one of his eyes and of imperfect vision, and was therefore negligent in running and operating his automobile. Upon special demurrer, this count was held good.
The plaintiff says that “in alleging that the jar was manufactured with a flaw in the glass, plaintiff has alleged all that it is possible for him to know.” It will not do to excuse itself on that ground, nor to say, as is alleged in the second count, that “the defendant knew, or should have discovered by a reasonable inspection, that the said flaw or defect in the said glass jar existed.” An inspection and examination of the jar after the accident, and the information obtainable therefrom were, or should have been available to, or on behalf of, the injured employee, her employer and his insurer. That some inspection was made of the jar, either before or after the accident, is apparent from the plaintiff’s Allegation that there was a flaw or defect in the glass.
The three cases cited by the plaintiff in support of the principle of law upon which it relies deserve some notice. They may serve the purpose for which they were cited, but they do not aid the plaintiff on the question of the sufficiency of the allegations of negligence in its declaration. In Heckel v. Ford Motor Co., the plaintiff was injured by the bursting of a pulley. The evidence of the defect in the pulley was a dark or black space showing an old defect against a bright
The foregoing cases are illustrative of the extent of proof required by Courts in other jurisdictions for . the purpose of establishing a prima facie case in actions similar to the one under consideration. Proof, at least, to the same extent would be required by the Courts of this State, and under the well recognized rule of pleading in this State, the defendant would, before trial, be entitled to. all the requisite facts which are necessary to be proved to entitle the plaintiff to a verdict. The plaintiff is never obliged to set out in his declaration matters of evidence, but he must set out therein, with reasonable certainty and particularity, essential facts, so that the defendant will be enabled to prepare his defense. This rule does not permit