Appeal from the District Court of the United States for the Eastern District of Pennsylvania; William H. Kirkpatrick, Judge.
Before MARIS, CLARK, and JONES, Circuit Judges.
The plaintiff, Sierocinski, suffered serious personal injuries through the untimely explosion of a fuse cap of a kind ordinarily used to detonate dynamite charges. He instituted suit for damages against the defendant, the manufacturer of the cap, and obtained a jury's verdict. From the judgment entered on the verdict, the defendant appeals, contending that the plaintiff failed to show that his injuries were the result of negligence on the part of the defendant and that the trial court erred, therefore, in refusing the defendant's request for a directed verdict and in dismissing its motion for judgment n.o.v.
Viewed in the light most favorable to the plaintiff, as the implication of the jury's verdict requires (Delaware & H.R. Corp. v. Bonzik et al., 3 Cir., 105 F.2d 341, 344; Baltimore & O.R. Co. v. Muldoon, 3 Cir., 102 F.2d 151, 152; Harris v. Reading Co., 325 Pa. 296, 300, 189 A. 337), the material facts are as follows.
The plaintiff, an experienced quarryman, had charge of the blasting in a quarry operated by his employer, Ehret Magnesia Company, at valley Forge, Pennsylvania. On the morning of his injury (September 24, 1936) the plaintiff, following his usual practice, had taken seven or eight fuses (3 1/2 to 4 feet long) and a box containing some fuse caps from the separate magazines maintained for their storage some 600 to 800 feet distant from the quarry. He carried the caps and fuses to the quarry, where he placed them on the top of the "day magazine", - a wooden box about 2 1/2 feet square and several feet high, which was used for the temporary storage of blasting materials near the face of the quarry.
The caps, which consisted of hollow cylinders made of a copper alloy, closed at one end, were 1 1/4 inches long and about 1/4 inch in diameter at the open end. Inside of the cylinder and seated against the closed end was a metal capsule 7/8 inch long which contained a high explosive. The fuses resembled light rope or cord and were of a diameter slightly less than the diameter of the caps so that an end of a fuse could be inserted in a cap.
The plaintiff capped the fuses and, as he did so, he laid them back on top of the "day magazine" preparatory to crimping the caps. This operation is performed in order to prevent a fuse and its cap from becoming disengaged and is accomplished by means of a metal instrument, which resembles a pair of narrow pliers and which is intended, when manually applied, to squeeze or compress the outer or open end of the cap against the encased fuse. According to the plaintiff, in crimping the caps, he held a fuse in his left hand with the base or closed end of the cap pointing upward and the fuse downward and, with his right hand, applied the crimping iron to the lower or open end of the cap. He testified that while performing the crimping operation in a careful and proper manner, just as he had done with safety many times before, the fifth or sixth cap exploded, while being crimped, causing the injuries for which he claims damages.
The caps, which had been manufactured by the defendant, had been obtained by the plaintiff's employer from an independent distributor of blasting materials who, either mediately or immediately, had obtained them from the defendant. The caps, as packed by the defendant, came in boxes of 100, and purchases thereof by the Magnesia Company were made from the independent distributor about four times a year in lots of 1000 to 2000 caps at a time. Upon the Magnesia Company's receipt of a supply of caps, they were placed in the storage magazine under the control of the plaintiff, who took caps therefrom as needed for his blasting work at the quarry. The evidence does not disclose how long before the accident the caps which the plaintiff was using had left the control of the defendant, when they had been purchased by the plaintiff's employer, or when or from whom they had been received by the distributor. But, the testimony did show that the box from which the plaintiff had extracted the particular caps on the day of the accident had been opened several days prior thereto and still had some caps remaining in it after the plaintiff had taken out the seven or eight then needed. The custody and use of the blasting caps was under the exclusive control and supervision of the plaintiff at the time of the accident and had been from the time his employer purchased them.
This is not a case of an employer's liability to his employee for an injury received in the course of employment.Presumably that liability has been discharged. The docket entries show that the Ehret Magnesia Company (the plaintiff's employer) petitioned the court below to have the plaintiff's judgment against the defendant marked to the use of the Magnesia Company. The present suit is against a party foreign to the plaintiff's employment.
Negligence is the basis of the plaintiff's action. His right to a recovery depends upon his ability to prove the defendant's breach of a duty as being the proximate cause of his injury. The duty which the defendant owed to the plaintiff is the same which each of us owes to all others, namely, to exercise reasonable care under the circumstances. This was none the less true even though the article manufactured and sold by the defendant was an explosive. Amsterdam v. E. I. DuPont de Nemours Powder Co., 62 Pa.Super. 314, 324.
The negligence alleged by the plaintiff was the defendant's manufacture and distribution of a dynamite cap said to be incapable of withstanding the crimping to which, as the defendant knew, it would be subjected and that the defendant knew or should have known that the cap would explode upon being crimped. However, the testimony offered by the plaintiff went no further than to identify the cap as one which the defendant had manufactured, to describe the explosion, and to affirm that the plaintiff was performing the crimping in a proper and careful manner and that he had not tampered with or altered the cap prior thereto. No proof, however, either direct or circumstantial, was adduced to support a finding of any of the specific acts of negligence alleged. As the learned trial judge observed in his charge to the jury, "the plaintiff has not produced any affirmative evidence before you of what that negligence is that he charges or what that defective or improper construction is."
None the less, the court submitted the case to the jury upon the theory that "there are cases in which a jury may, if they see fit, draw an inference of negligence or find evidence of negligence from the circumstances of the accident; and * * * [that] this is one of those exceptional cases". In so doing, the trial court studiously refrained from applying the rule of res ipsa loquitur, eo nomine. But, regardless of terminology, the submission of the case on the basis of the plaintiff's limited proofs actually permitted the jury to infer negligence from the happening of the accident without more.
While an application of res ipsa loquitur relates to trial procedure in its shifting of the burden of going forward with the evidence, the question of the sufficiency of the evidence to take the case to the jury may depend upon whether or not res ipsa loquitur is applicable under the peculiar circumstances of the given case. In such instance, the substantive right is so exclusively dependent upon the proof supplied by the application of the rule that it would seem that the applicability of the rule in a federal court should be determined by the local law in keeping with the spirit of Erie ...