138 N.Y.S. 224 | N.Y. App. Div. | 1912
Lead Opinion
The plaintiff was the owner of an automobile known as a model 10 runabout purchased by him of Close Brothers who had purchased the samé from the defendant, the manufacturer thereof. While operating said automobile upon the public highway one of the rear wheels collapsed by which plaintiff was thrown out and injured. He brought this action against the defendant, as manufacturer, alleging that the defendant was careless and negligent in the manufacture of said automobile and failed to use due care in its construction and in testing the same, and the materials of which it was made, and that it was constructed for the purpose of running at consider
The .defendant’s answer does not deny but that in the year 1909 it sold and delivered to Close Brothers an automobile known as model 10 runabout, and does not deny but that the said automobile referred to in the complaint was constructed to run at considerable speed on ordinary highways and that it- was necessary that good and strong material should be used in the wheels on said machine. It alleges that there is no contractual relations between the plaintiff and the defendant and for a further defense alleges that the said automobile was constructed by the defendant out of parts some of which were made exclusively by the defendant and other parts used upon the wheels of the car referred to in the complaint were not manufactured by the defendant but were manufactured by the Imperial Wheel Company of Flint, Mich., a reputable manufacturer and dealer, and were purchased by the defendant from the said Imperial Wheel Company.
The case came on for trial and at the close of the plaintiff’s case the defendant’s motion for a nonsuit was granted by the court, from which the plaintiff appeals.
It appeared upon the trial that the plaintiff, who is a resident of the village of Galway, Saratoga county, purchased this automobile of Close Brothers (to whom the defendant had sold it) of the city of Schenectady, that it was a model 10 Buick, 1910, runabout with a seat for two in front with a rumble seat for one on the box behind.' The horse power was twenty-two and one-half and it was rated to go fifty miles per hour
This was all done quickly. At the time of the accident the machine was not going as fast as fifteen miles an hour. Plaintiff was found after the fall under the hind axle of the machine. He was released with some difficulty and had received the injuries for which the action was brought.
The left hind wheel was the one that collapsed. It was some thirty inches in diameter and had twelve¡ spokes, all of which were broken out.
There was evidence given from which the jury might have found that these spokes were nearly all of them of inferior
An accident (similar to the one that did happen) in the streets of any city might easily injure many persons other than the immediate occupants of the automobile. An accident at the place in question, the approach to a populous village, a summer resort, in the month of July, when people were accustomed to go to that village as a health resort or for pleasure in considerable numbers, might easily be attended with serious injury to other automobile users of the highway, or persons walking thereon or driving thereon with horses and wagons, so that the use which it was intended that this automobile should be put to was a public use to be used‘upon the highways which were open to all the people. The automobile was likely to be used in a city or populous village or upon State roads much frequented by automobile users and other people, and hence the injuries that might be apprehended from manufacturing and selling an insecure vehicle, a vehicle composed of inferior
Referring to the case of Statler v. Ray Manufacturing Company (125 App. Div. 69) it appeared that the defendant, a manufacturer, sold a large coffee urn which was to be used in hotels and restaurants. On account of improper workmanship and negligence of the manufacturer, one of these coffee urns, which was used in a hotel or restaurant, exploded, the bottom being partially driven out by force of steam and water and the injury to plaintiff was thus caused. The plaintiff had no contractual relations whatever with the manufacturer. The defendant had sold it to a jobber who in turn had sold it to a company of which plaintiff was an officer. Plaintiff brought an action in negligence claiming á liability of the manufacturer for negligent construction and obtained a judgment which was affirmed at the Appellate Division. The head note in part is: “In such case the negligence is based upon a failure to perform a duty owed to all persons in whose presence the boiler is to be used, not upon a duty owed to the purchasers only.”
It will be seen that that case is one degree removed from the case with which we are dealing, as here the purchaser from the jobber was the person who was injured and who is the plaintiff in this action.
Upon appeal to the Court of Appeals (195 N. Y. 478, 481) that court said: “We think further that there was evidence which permitted a jury to say that the defendant, knowing the uses for which the urn was intended when it marketed the same, was guilty of, and of course chargeable with knowledge of, defective and unsafe construction. This leaves on this branch of the case simply the question whether a manufacturer and vendor of such an inherently dangerous appliance as this was may be made liable to a third party on the theory invoked by plaintiff, and wé think that this question must be regarded as settled in the latter’s favor by the following authorities: Thomas v. Winchester (6 N. Y. 397); Coughtry v. Globe Woolen Co. (56 N. Y. 124); Devlin v. Smith (89 N. Y. 470, 474-477); Davies v. Pelham Hod Elevating Co. (146 N. Y. 363); Torgesen v. Schultz (192 N. Y. 156); Connors v. Great
See, also, 29 Cyc. 484, where it is stated: “Liability Based on Knowledge That the Thing Supplied, if Defective, Will Be Dangerous. One who supplies a thing for such use by others that it is obvious that any defect will be likely to result in injury to those so using it is liable to any person who, using it properly for the purpose for which it is supplied, is injured by its defective condition. The doctrine of invitation has been invoked as a ground of liability in such cases,-proceeding upon the theory that he who furnishes a thing for a certain use by others invites others to use it, and is therefore bound to make it safe for such purpose.” (See, also, Connors v. Great Northern Elevator Co., 90 App. Div. 311, 313.)
I think this case falls within the rule established by the Court of Appeals in the Statler case quoted from and the numerous cases quoted by that court, and I think that the question at issue should have been under proper instructions submitted to the jury.
I, therefore, favor a reversal of the judgment, with a hew trial to plaintiff, costs to abide the event.
All concurred; Houghton, J., in memorandum.
Concurrence Opinion
While much can be said upon the proposition that an automobile traveling at a speed of fifty miles an hour, which the machine in question was capable of making, would be inherently dangerous not only to the occupants but to a large number of fellow-travelers upon the highway, if one of its wheels
It seems to me that the plaintiff by his proof made a prima facie case of negligence on the part of the defendant through failure to properly test the strength of the wheel which collapsed.
If the defendant had put a wheel on the automobile in question, designed to run at a speed up to fifty miles an hour, the spokes of which it knew were made of improper or defective wood and had covered them up with paint and varnish, there would be no question as to its liability, at least to a purchaser, although no contract relation might exist between it and him. In such case it would be conclusively presumed that the defendant knew that defective spokes would not stand the necessary strain incident to such speed, and the covering of the defects with paint and varnish and the actual or implied representation that they were fit to stand the strain would constitute a fraud upon the purchaser and user, rendering the manufacturer liable to the purchaser or user for the injuries resulting from such known defects, under the principle enunciated in Kuelling v. Lean Manufacturing Co. (183 N. Y. 78).
The defendant claims and alleges by its answer that it purchased its wheels from a reputable manufacturer. If we assume this to be so, although there is no proof on the subject, still it cannot shield itself because the manufacturer was a reputable one. Whether it made the wheels itself or purchased them from another, it was bound to make some reasonable test of the suitability of the wood before it placed such wheels upon its machines and put them on the market ready for use. If the defendant itself made the wheels some defects in the wood would be disclosed in the course of manufacture, and if it bought them from another it must use some reasonable means of ascertaining whether they were made of-proper material.
It seems to me that Torgesen v. Schultz (192 N. Y. 156) is a quite sufficient authority to uphold the plaintiff’s contention that he made a prima facie case of negligence through failure to properly test the strength of the wheel.
In that case the siphons were purchased by the defendant
In the case at bar, assmning the defendant’s claim to be the fact, it purchased its wheels from the Imperial Wheel Company, a reputable manufacturer. The defendant knew that when its machine was run at high speed the wheel was likely to collapse if its spokes were made of defective wood. The plaintiff proved that ordinary inspection of the wood before it was covered with paint and varnish would reveal much of the defect which existed. The plaintiff also proved that another reputable manufacturer of automobiles used a hydraulic pressure test. If the wheels were not painted when they were purchased by the defendant, according to the plaintiff’s proof, some of the defects which were shown to' exist in the broken spokes would have been disclosed by a mere inspection. If they were painted so that such defects were covered, a pressure test would probably have revealed the weakness.
Possibly the defendant may be able to show that it made all the inspection and tests that it could reasonably be required to
For these reasons I concur in a reversal of the judgment and the granting of a new trial.
Judgment reversed and new trial granted, with costs to appellant to abide event.