105 N.E. 795 | NY | 1914
This case produces a very unfavorable impression at the outset in one respect. It was originally tried on one theory as to the cause of the explosion by which the infant plaintiff was injured. That theory was declared to be wholly untenable by the Appellate Division and without any evidence to sustain it. (Paul v.Consolidated Fireworks Co.,
The infant plaintiff was badly injured by the explosion of a piece of fireworks, known as a geyser, while he was engaged in fastening a stick to it by driving a steel nail through the stick and into the geyser with a brass-faced hammer. The complaint alleged that the defendant, negligently disregarding its duty to provide a suitable and safe place for the plaintiff to work in and to furnish suitable and proper materials and tools for his work, whereby a fire and explosion occurred, the plaintiff received great and serious burns and injuries. It contained nothing to indicate or suggest how the fire and explosion were caused. On the first trial expert opinion evidence was introduced to prove that it was occasioned by a spark thrown off by the impact of the brass face of the hammer against the head of the steel nail, which spark set fire to some loose powder or other inflammable composition on the table *120 where the geyser lay. The Appellate Division having rejected this explanation of the accident a new one was advanced, and that is that the geyser was exploded by the heat due to the friction occasioned by driving the steel nail into the compact compound of which it was made up, which consisted of 18 parts of salpetre, 4 parts of sulphur and 6 parts of charcoal. This theory is also sought to be sustained by expert opinion evidence, of which the most that can be said is that it indicates a possibility that this may have been the cause of the explosion.
In my opinion this evidence is too speculative to justify holding the defendant liable for negligence, in view of the uncontradicted proof that steel nails had been used for the same purpose in the same way without accident in the largest manufactories of fireworks for many years. The rule applicable to this case is that stated by Mr. Justice WOODWARD on the first appeal, "that tools and appliances which have been in use for many years and have been found to serve their purpose with reasonable safety may be retained in use without the imputation of negligence, even though others have found it advisable to make use of improved appliances. In other words, negligence is not a matter to be judged after the occurrence; it is always a question of what reasonably prudent men under the same circumstances would or should, in the exercise of reasonable care, have anticipated." (
In accidents of employment, especially where the injuries are serious, there is a tendency always to impute blame to some one. The servant blames his master; the master attributes contributory negligence to his servant. We are apt to forget that accidents are not infrequent, for which no one is really to blame at all. There are cases of pure accident, such as are mentioned in the title on Negligence, in Lord Halsbury's great work, where it is said: "No liability for negligence attaches to a party when in the prosecution of a lawful act injury to another *121
is caused by a pure accident; nor can anyone be said to be negligent merely because he fails to make provision against an accident which he could not be reasonably expected to foresee." (21 Halsbury's Laws of England, p. 363.) I think that this is clearly such a case. (See Dougan v. Champlain Trans. Co.,
CHASE, COLLIN, CUDDEBACK, HOGAN and CARDOZO, JJ., concur; MILLER, J., not sitting.
Judgment reversed, etc.
