192 N.Y. 156, Torgesen v. Schultz

• Docket Number: .
• Date: 19 May 1908
• Citation: 192 N.Y. 156
• Parties: DENE TORGESEN, Appellant, v. CARL H. SCHULTZ, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 156

192 N.Y. 156

DENE TORGESEN, Appellant,

v.

CARL H. SCHULTZ, Respondent.

New York Court of Appeal

May 19, 1908

Argued April 15, 1908.

COUNSEL

Page 157

Henry W. Taft and Edwin P. Grosvenor for appellant. The court erred in not submitting to the jury the questions whether under the circumstances proven in the case the defendant was not negligent of a duty which it owed to the plaintiff in selling the bottle in question without subjecting it to a more careful and thorough test than it did, and whether the explosion was due to a weakness which such a test would have disclosed. (Thomas v. Winchester, 6 N.Y. 397; Devlin v. Smith, 89 N.Y. 470; Coughtry v. G. W. Co., 56 N.Y. 124; Loop v. Litchfield, 42 N.Y. 351; Losee v. Clute, 51 N.Y. 494; Davies v. P. H. E. Co., 65 Hun, 573; Kahner v. O. E. Co., 96 A.D. 169; Bishop v. Weber, 139 Mass. 411; Wellington v. D. K. O. Co., 104 Mass. 64; Elkins v. McKean, 79 Penn. St. 493.) The trial court erred in not leaving to the jury the question whether the defendant should not have warned the plaintiff by some notice calculated to call attention to the fact that sudden changes of temperature rendered the bottle liable to explode. (Farrant v. Barnes, 11 C. B. [ N. S.] 561; Wellington v. D. K. O. Co., 104 Mass. 64.)

Charles C. Nadal for respondent. The testimony as to the experiments with siphons is valueless for any purpose whatever in this case and should not have been received. (Fillo v. Jones, 2 Abb. Ct. Dec. 121; Yates v. People, 32 N.Y. 509.) The defendant's duty, in any event, was only to use ordinary care. (Bruckel v. Milhau, 116 A.D. 832.) The defendant was justified in following the practice which had existed for a great many years without any injury having resulted. (Bruckel v. Milhau, 116 A.D. 832; Burke v. Witherbee, 98 N.Y. 562; McKenzie v. Waddell, 89 A.D. 415; Reiss v. N.Y. S. Co., 128 N.Y. 103; Del Sejnore v. Hallinan, 153 N.Y. 274; Gould v. Slater, 17 N. E. Rep. 531.)

WILLARD BARTLETT, J.

The plaintiff has suffered the loss of an eye by reason of the explosion of a siphon bottle of aerated

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water filled and put upon the market by the defendant corporation. The siphon had been charged at a pressure of 125 pounds to the square inch. The plaintiff was a domestic servant and on July 1, 1901, between one and two o'clock in the afternoon she received at the door of her employer's house in the city of New York two siphons which had been filled with water by the defendant and which had been purchased from a druggist who had obtained them from the defendant. The day was very hot, the registered temperature at the weather bureau being as follows: 1 P. M., 95 degrees; 2 P. M., 96 degrees; 3 P. M., 96 degrees; 4 P. M., 96 degrees; 5 P. M., 96 degrees; 6 P. M., 97 degrees; 7 P. M., 96 degrees, and 8 P. M., 93 degrees. Upon receiving the siphons the plaintiff took them to a room in the third story, where they remained until between 7 and 8 o'clock in the evening, when she carried them down stairs and placed them in a standing position in a pan containing ice, so that one side of each bottle was against the ice. As she turned away one of the siphons exploded with the result stated.

To show the necessity of taking precautions to prevent such explosions, and also to show the extent of the precautions actually taken by the defendant to that end, plaintiff's counsel read in evidence certain extracts from a printed circular of the defendant and counsel for the defendant also read certain other extracts, all of which taken together are as follows:

'We take all possible precautions to guard against accidents by not allowing any siphons or bottles to leave our premises without first being thoroughly tested. On account of the sudden change of temperature any defect in the glass will at once cause the siphon bottle to break. The accompanying cut shows our siphon testing department. All siphon bottles are imported direct from Austria and are received in large...