The opinion of the court was delivered by: KALODNER
Defendant under Rule 12 (e), Rules of Procedure for District Courts, 28 U.S.C.A. following section 723c, has moved for an order requiring the plaintiff to file a more definite statement of claim.
Plaintiff instituted a trespass action to recover for injuries which he suffered when a dynamite cap, manufactured and distributed by the defendant, exploded while the plaintiff was crimping it. Plaintiff did not purchase the dynamite cap directly from the defendant: nor, for all that appears in the statement of claim, did the plaintiff's employer purchase it directly from the defendant. The action did not happen on the premises of the defendant, but on the premises of the plaintiff's employer.
The sole allegation of negligence attributed in the statement of claim to the defendant is in paragraph 9 of the statement of claim, which reads as follows: "The said explosion and the injuries to the plaintiff resulting therefrom, were caused solely by the carelessness and negligence of the defendant in manufacturing and distributing a dynamite cap which, when handled in the usual and proper mannner, exploded."
Defendant complains that the allegations of negligence are not sufficiently specific and do not afford it an opportunity to know what issue or issues it might have to meet upon trial in regard to negligence. It contends, and with justice we consider, that the allegations consist of conclusions and not of facts.
Under the authorities cited in the defendant's brief, it is clear that the allegations of negligence (while not fatal to the validity of the statement of claim if not attacked preliminarily) nevertheless are so lacking in exposition of facts and particularization as to fail to meet the usual requirements of proper pleading.
Conceding so much, however, it is necessary to dispose of other questions before concluding that the allegations are insufficient to put the defendant to his defense. For there are certain classes of cases where evidence merely of an accident, or the sustaining of an injury, sometimes with and sometimes without attending circumstances, is enough to send a case to the jury; wherefore the mere averment of the accident, the injury, and the circumstances would constitute sufficient pleading in a statement of claim. Therefore, if this case falls into any one of those classifications, which are specified and discussed below, then the recital of the explosion of the dynamite cap, bare of elaboration as it is, makes out a sufficient claim.
(b) Cases where the happening of an accident resulting in injury, with the attendant circumstances, are sufficient to raise an inference of negligence and cast upon the defendant the burden of establishing his freedom from fault -- as when the thing causing the injury is under the management of the defendant and the accident is such as does not happen if those who have the management use proper care.
As to (a) res ipsa loquitur:
A review of the authorities convinces us that the doctrine of res ipsa loquitur does not apply: E.I. Du Pont de Nemours Powder Co. v. Duboise, 5 Cir., 236 F. 690 (the explosion of a dynamite cap); 25 C.J. 205 (id.); Favo v. Remington Arms Co., 67 App.Div. 414, 73 N.Y.S. 788; Bonham v. Winchester Repeating Arms Co., 179 Ill.App. 469 (the bursting of a gun); annotation in 17 A.L.R. 672, 698, passim.
In the E.I. Du Pont de Nemours Powder Co. v. Duboise Case, above cited, the plaintiff while handling and using a box of dynamite caps was injured by an explosion. The Court held: "* * * One * * * injured * * * has the burden of proving the negligence charged against the manufacturer or seller. The mere happening of the explosion carries with it no presumption of negligence on the part of the manufacturer or seller. It is an affirmative fact for the injured person to establish that the party sought to be charged with liability has been guilty of negligence. Patton v. Texas & Pacific Ry. Co., 179 U.S. 658, 21 S. Ct. 275, ...