167 A. 90 | Conn. | 1933
The plaintiff was very seriously injured by the premature discharge of dynamite when he was engaged in blasting certain rocks in a mine in Tennessee. The blast had been prepared by another employee of the company operating the mine, who had inserted a piece of fuse about two feet long. It should have taken about a minute and a half for the fire to travel from the outer end to the cap which would explode the dynamite. The explosion came, in fact, within two or three seconds after, as the plaintiff claimed, he had applied the flame of his miner's lamp to the end of the fuse. His contention is that this was due to defects in the fuse which caused the fire to run through it almost instantaneously. The fuse was manufactured by the defendant and, while not sold by it directly to the company operating the mine, the jury could not well have found otherwise than that nothing *113 could have happened to it between the time it left the factory and the time it was used which would materially affect the rapidity with which it would burn. The plaintiff brought this action against the defendant upon the ground that it was negligent in the manufacture of the fuse and in its inspection before it shipped it from its factory. The jury returned a verdict for the plaintiff which the trial court set aside as against the evidence, and from that ruling this appeal is taken.
The plaintiff offered evidence tending to prove that the blast was so prepared that the dynamite could not have been exploded except by the fire running through the fuse. The only persons present in the portion of the mine where the explosion occurred while the blast was being prepared and at the time of the accident were the plaintiff and a fellow employee, who testified for him, and while there was certain evidence from which inferences contrary to the testimony they gave might have been drawn, the jury might have accepted it, had it stood alone and, applying the charge of the court, inferred from it negligence on the part of the defendant. The fuse sold by the defendant was wrapped in packages each of which contained two pieces about fifty feet long, and was so marked that its passage through the process of manufacture might have been traced. The particular piece of fuse involved in the accident could not, however, be identified as coming from any definite package. The defendant proceeded to produce evidence showing in detail the process of manufacturing fuse in use at the time of the accident, describing the machines through which it passed and the various safeguards, tests and inspections used to insure that all fuse sold would have a substantially uniform burning time. No claim is made by the plaintiff that there was anything negligent in the defendant's process of manufacture, if the machines operated *114 as they were designed to do and the operatives properly performed their duties. This process, from the time the powder used in the fuse was placed in a receptacle over the machine which performed the first operation until it went through an inspecting machine, was entirely mechanical.
The defendant offered evidence that it was not possible to produce upon its machines fuse which would burn as rapidly as the plaintiff contended did the piece of fuse involved in the accident, and that any defect that might have occurred in the fuse would have retarded or stopped its burning instead of accelerating it. The defendant's witnesses also described the inspecting machines through which the fuse passed after its manufacture was completed except for the outer coating. According to the evidence these operated in such a way that if any section of the fuse had not contained the usual amount of powder or had had any other defect which might have caused the fuse to burn with more than the usual rapidity, the fuse would necessarily have been smaller; that this would have caused the inspection machine to stop; and that then it was the duty of the operator in charge to cut out the defective portion and dispose of it as waste material. The contention of the defendant is that by this evidence it had conclusively rebutted any inference of negligence on its part that might have been drawn from the fact that the explosion occurred in the way the plaintiff claimed, and as there was no other basis for finding it negligent, that the trial court was correct in setting the verdict aside.
The evidence of the defendant as to its process of manufacturing the fuse was uncontradicted and nothing upon the face of the record suggests any reason why the jury ought not to have credited it. The trial court, in its memorandum setting the verdict aside, *115
regarded this evidence as establishing "an indisputable physical fact" which did not permit a reasonable conclusion of negligence on the defendant's part. Counsel for the plaintiff ably analyzed the cases in which, in reviewing rulings of trial courts upon motions to set verdicts aside as against the evidence, we have applied the doctrine summarized in Mlynar v. Merriman Sons, Inc.,
While, in this instance, there was no judicial admission of the truth of the description of the manufacturing process of the defendant or the fact that quick burning fuse could not be produced upon its machines, it is significant that the plaintiff advances only two theories in accordance with which it claims that such fuse might have been produced; one is that a powder more quickly burning than that ordinarily used might in some way have been introduced into the fuse, and the other is dependent upon a combination of several defects occurring at one time in defendant's machinery; but the first of these theories is opposed by the testimony of the defendant that no powder which upon any reasonable hypothesis might have been used in the fuse would have made it as quick burning as the plaintiff claims was the piece involved in the accident, and the other theory finds no support in the evidence. It *116 is also significant that though the machinery and methods of manufacture were very fully described and in part demonstrated before the jury, the plaintiff offered no expert testimony to contradict that of the defendant's witnesses as to the possibility of producing quick burning fuse and that he sought no opportunity to have the machines examined by experienced mechanical engineers, an opportunity which, so far as appears, would have been granted him by the defendant had he requested it. Unless the evidence offered by the defendant as to its process of manufacture is to be disregarded, it negatives any reasonable basis for a conclusion that its machines could have produced fuse which would have burned at such a rate that the fire would run through a piece two feet or more in length in two or three seconds; and we can find in the evidence no reasonable ground which would have justified the jury in disregarding that evidence. The trial court was not in error in setting the verdict aside.
Both parties have filed bills of exceptions. That of the plaintiff rests upon the failure of the trial court to give certain of its requests to charge. One of these was to the effect that, if the jury accepted the testimony of the plaintiff's witnesses as true, they might infer from it that there was a defect in the fuse due to the defendant's negligence in manufacturing it. As this request was phrased, the jury might well have understood from it that they were to consider the testimony of the plaintiff's witnesses in determining whether or not the defendant was negligent apart from the evidence it offered, which would not have been proper; the jury's conclusion could only be properly reached by considering all the evidence. State v. Suffield ThompsonvilleBridge Co.,
Another of the plaintiff's exceptions raises the question as to the law of Tennessee, where the accident occurred, concerning the liability of the manufacturer of such an article as the fuse involved in this case to one injured by a defect in it, a question which is also raised in the defendant's bill of exceptions. The trial court charged the jury that the law of Tennessee was, briefly stated, this: "The defendant as the manufacturer is liable to a third person where the article so sold is of such kind as to be `imminently dangerous' to human life or health; and an article is `imminently dangerous' where, although it may safely be used for the purpose intended if properly constructed, yet, by reason of its defective construction, a threatening or impending injury may reasonably be apprehended to anyone properly using the article for the purpose for which it was intended." The general principle of liability stated in the first part of this portion of the charge accords with what is said in Burkett v. StudebakerBros. Mfg. Co.,
With the statement of law made in the charge the plaintiff quarrels because the trial court did not hold that the fuse in question was an "inherently dangerous" instrumentality, or, to adopt a phrase used at times by us, "intrinsically dangerous," but confined its charge to instrumentalities "imminently dangerous" and left it to the jury to say whether the fuse in question was such an instrumentality. On the other hand, the defendant claims that the fuse was not within the class of articles which properly can be designated even as "imminently dangerous." If there is any substantial validity, in the determination of liability for resulting injuries, in a distinction between an "inherently dangerous" instrumentality and an "imminently dangerous" instrumentality, which we doubt, it lies in the fact that, as regards the former, the danger arises from the nature and character of the thing itself; Godfrey v.Connecticut Co.,
The fuse here in question was not in any proper sense inherently dangerous, for in itself there was nothing to indicate that it would work serious harm, as might a considerable amount of dynamite gathered together for blasting; see Norwalk Gas Light Co. v.Norwalk,
The defendant also complains of a portion of the charge in which the trial court instructed the jury in effect that, if they found that the premature blast occurred as the plaintiff claimed, this would be circumstantial evidence that the fuse was defective and the defendant negligent. The court did not use in its charge the phrase "res ipsa loquitur;" very likely followingFirst v. Capitol Park Realty Co.,
The process of manufacture, testing and inspection of the fuse was entirely in the control of the defendant. In Schiesel v. Poli Realty Co.,
It is true that at the time of the accident the fuse was in the possession and control of the plaintiff, and the second condition we have stated is not literally fulfilled. The purpose of that condition is to exclude the possibility of an intervening act of the plaintiff or a third party which causes or contributes to produce the accident, and it undoubtedly states a necessary precaution for a sound application of the rule in most cases. In the case at bar, however, the finding, which we have said the jury might make from the defendant's own evidence, that nothing physically could be done to the fuse after it left the defendant's factory to cause it to burn as rapidly as it did, served to obviate in this case the need of that precaution. Any defect in the fuse which would cause it to burn as quickly as the plaintiff claims it did would necessarily be due to a failure in the defendant's manufacturing process or in its inspection and testing of the fuse. The allegations of the complaint were broad enough to include negligence in these respects and we have decided that the principle of proof we are considering is not to be held inapplicable because of specific allegations of negligence in the complaint. Thorson v. Groton StoningtonStreet Ry. Co., supra, p. 15; Firszt v. Capitol ParkRealty Co., supra, p. 642. Any discussion of the other claimed errors in the charge of the court or in its failure to give requests to charge would not be profitable. *123
The defendant seeks in its bill of exceptions to have reviewed the action of the trial court in sustaining a demurrer to two special defenses it filed. We have heretofore held that only rulings in the course of a trial may be presented by bills of exception. State v.Thresher,
There is no error.
In this opinion the other judges concurred.