220 Mass. 593 | Mass. | 1915
It was uncontroverted that the defendant, a manufacturer and dealer in paints, oils, varnishes and oil stains, instead of making it, obtained the walnut oil stain from another company which it put upon the market, although the label on the cans, with the directions for use, represented that the stain was of its own manufacture.
The plaintiff’s husband bought a can of this stain and while applying the contents in the ordinary way to the floor of a room, where because of gathering darkness it became necessary to light the chandelier, drew a match across his clothing, and the jury could find that as the match flamed there was an explosion of volatile vapor given off by the stain, followed simultaneously by the ignition of the entire surface to which it had been applied.
It is immaterial that previous to the accident the stain, whether in process of manufacture or use, never had ignited, for the jury would have been warranted in finding upon conflicting evidence that at least fifty per cent of the stain was composed of volatile oil, turpentine and petroleum products, including benzine, and these ingredients, especially the benzine, would quickly vaporize on exposure to the air, producing a gas which would instantly ignite on coming in contact with a lighted match. Dulligan v. Barber Asphalt Paving Co. 201 Mass. 227, 231. Gately v. Taylor, 211 Mass. 60, 62.
While no contractual relation existed between the defendant and the plaintiff or her husband, the jury could say that the stain had been represented as a “walnut stain,” designed for certain uses, but because of an unusually high degree of inflammability it was explosive and might cause serious personal injuries by taking fire when used under ordinary circumstances, one of which might be the necessity of using artificial light during application.
It is no justification that the defendant procured the stain instead of having it compounded on its own premises. The jury
It is urgently pressed that even if the defendant is held to be the manufacturer, it is not culpable unless shown to have possessed actual knowledge of the dangerous qualities of the stain. Proof, however, of actual knowledge is not required where the article is so made up as to be inherently harmful. The manufacturer who puts or causes the component parts to be put together, or accepts them as his own after they are assembled, must be presumed to know the nature and quality of the resultant compound which he solicits the public to purchase. The defendant’s product, it is true, was placed upon the market and sold as an oil stain, yet it is not the name of the article which determines its qualities. If the parts are not compounded in proper and safe proportions, while it may be called a "stain,” the excess of benzine, or other volatile oils, as we have said, could be found by the jury to have made it a highly inflammable and dangerous fluid or substance.
The distinction between the case at bar and Lebourdais v. Vitrified Wheel Co. 194 Mass. 341, is plain. In that case the defendant was a manufacturer of emery wheels, and the plaintiff while at work was injured by the explosion of a wheel which his employer had bought and installed. It was held that he could not recover in the absence of knowledge on the part of the defendant that the wheel was defective when it left the factory. But an emery wheel which may explode when revolving at high speed is not recognized as intrinsically harmful, and the manufacturer who makes and vends articles of ordinary use, which of themselves are harmless, is ordinarily held not to be answerable if when in use personal injuries are caused by reason of their defective construction. Lebourdais v. Vitrified Wheel Co. 194 Mass. 341, 343, and cases cited. Nor would a retail dealer or wholesale jobber under the circumstances disclosed be liable.
It is settled that, whether the defendant was responsible in damages to the plaintiff because of the inherently dangerous prop
The distinctions to which we have adverted were clearly covered by the full, careful and sufficient instructions to the jury. The third and fourth counts under which the case was submitted to them are stated to be for one and the same cause of action, and having aptly alleged that the defendant knew, or in the exercise of reasonable care ought to have known, that the stain as compounded and sold without notice of its nature and qualities was inherently dangerous, the instructions requested as framed in so far as applicable to the question of its liability could not have been given. Little v. Blunt, 13 Pick. 473, 476. Wellington v. Downer Kerosene Oil Co. 104 Mass. 64, 67, 68. Colvin v. Peabody, 155 Mass. 104, 107. Goodhue v. Hartford Fire Ins. Co. 175 Mass. 187, 188.
The defendant also maintains that the plaintiff and her husband acted carelessly and that the first request, that on all the evidence she could not recover, was refused wrongly.
It is to be presumed that the jurors from common knowledge were familiar with the customary use of oil stains, and that ordinarily such stains did not ignite and explode if the workman, while applying them, happened to light a match, and the plaintiff’s husband is not shown to have had any greater information. If he was to continue his work the room must be lighted, and the mode of lighting was sufficiently common to justify a finding that he was not careless.
Nor can it be said as matter of law that the plaintiff’s conduct in seizing the can and endeavoring to extinguish the fire, causing injuries from burns for which she seeks damages, shows a lack of reasonable precaution. It well may have seemed to her that not only her husband’s safety, but their home, was imperilled
The jury, to whom this question also was left properly under instructions which fully guarded the defendant’s rights, were to determine whether under -the circumstances the plaintiff used reasonable care. Hanley v. Boston Elevated Railway, 201 Mass. 55, 58. Steverman v. Boston Elevated Railway, 205 Mass. 508, 513. Gately v. Taylor, 211 Mass. 60.
The exceptions to the admission and exclusion of evidence in so far as argued remain. The plaintiff’s expert, a professor in chemistry, whose qualifications rendered his evidence admissible in the opinion of the presiding judge who does not seem to have exceeded his discretionary powers, was properly permitted to state the result of his analysis of the stain, and his tests to ascertain the distance at which ignition would be produced.
If the form in which some of his answers as first given was objectionable, the objection was removed when in reply to unexceptional questions, he gave his opinion as a qualified expert, the weight of which was for the jury. Carroll v. Boston Elevated Railway, 200 Mass. 527, 533. Bierce v. Stocking, 11 Gray, 174.
The plaintiff’s expert having testified that a can of the stain could be lighted in the presence of the jury and easily extinguished, the defendant offered to make the experiment, but the evidence was excluded. The inciting cause of the explosion does not seem to have been questioned, but the conditions under which it occurred were so manifestly different from the conditions when the experiment was proposed, that it would not have assisted the jury unless supplemented by collateral inquiries. The admission of such evidence being largely within the discretion of the judge, we cannot say that his ruling was clearly wrong. Dow v. Bulfinch, 192 Mass. 281, 285. Field v. Gowdy, 199 Mass. 568. Commonwealth v. Buxton, 205 Mass. 49.
The jury by order of the court having returned a verdict for the defendant on the first and second counts, its appeal from the order overruling the demurrer as to those counts is disposed of; and finding no error of law, the exceptions must be overruled.
So ordered.
