existed between defendant and deceased. Such warranties in this State have been sustained as to the manufacturer where purchase has been made from a middleman only in respect to foods and like products which have been preserved in the form delivered by the manufacturer; and in such cases the implied warranty is pursuant to statute. And in those cases the recovery is really based upon the proof of negligence, even where the implied warranty is approved.
The charge of negligence in the complaint is not so direct or specific as it well might be. However it does aver that the rope was defective and had been sold in a defective condition, and had not been properly inspected. Without quoting authorities we may assert that one who sells an article inherently dangerous to another which has been negligently manufactured, or concerning whose qualities the purchaser has not been warned, is liable to that other for injury which might reasonably have been anticipated, even though contractual relations did not exist between them. And the Supreme Court of Pennsylvania in Ebbert v. Philadelphia Electric Company, 330 Pa. 257, 198 A. 323, has held that no sound distinction can be drawn between a so-called dangerous chattel and one which, although normally harmless, becomes dangerous when defective.
The court will deny the motion to dismiss the complaint. As tending to sustain its motion the defendant has called attention to Sierocinski v. E. I. Du Pont de Nemours & Co. 3 Cir., 118 F.2d 531, opinion by Jones, C.J. That opinion may require the consideration of this court upon trial, but was not rendered upon a pleading, but upon sufficiency of proof. The manufacturer had sold to complainant's employer certain caps, containing an explosive, which were to be attached to fuses which were connected with blasting charges. The complainant, in preparing the caps, was injured by an explosion of them, or one of them, and the suit was against the manufacturer. The complainant offered no proof of failure on the part of the manufacturer to use due care, but relied upon the explosion and accident. The opinion held that, no contractual relation existing between the complainant and the defendant, the former could not rely upon the rule of res ipsa loquitur (that is, that the cause and control of the cause of the accident being within the knowledge and control of the defendant, and that the accident could not have happened without its negligence, proof beyond the accident under such circumstances was not required). It further held that plaintiff could not rely upon the Pennsylvania rule that the plaintiff might rely upon an inference of negligence where the accident resulted from defendant's exclusive control of the instrumentality of the accident (a twin of res ipsa loquitur almost its counterpart) because the proof in the case before the court disclosed the fact that the instrumentality of the injury was not in the control of the defendant at the time of the injury.
The principles enumerated in Sierocinski v. E. I. DuPont, supra, will control this court upon trial of the present action, but do not relate to the sufficiency of the complaint.
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