217 N.Y. 382, MacPherson v. Buick Motor Co.

Citation:217 N.Y. 382
Party Name:DONALD C. MACPHERSON, Respondent, v. BUICK MOTOR COMPANY, Appellant.
Case Date:March 14, 1916
Court:New York Court of Appeals

Page 382

217 N.Y. 382




New York Court of Appeal

March 14, 1916

Argued January 24, 1916.

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William Van Dyke for appellant. An automobile is not an inherently dangerous article. (Slater v. Thresher Co., 97 Minn. 305; Danforth v. Fisher, 75 N.H. 111; Cunningham v. Castle, 127 A.D. 580; Vincent v. Seymour, 131 A.D. 200; Lewis v. Snorous, 59 S.E. [ Ga.] 338; Huddy on Automobile, 15; Steffen v. McNaughton, 142 Wis. 409; Jones v. Hope, 47 Wash. 633; Johnson v. Cadillac, 194 F. 497; 221 F. 801.) An automobile not being an article inherently dangerous, defendant was not liable to a third party in simple negligence--that is, for negligence as contradistinguished from willful or knowing negligence, or in a negligence action as distinguished from an action for deceit, fraud or misrepresentation, to third parties not in contractual relations with it. (Salisbury v. Howe, 87 N.Y. 132; Landeman v. Russell, 91 N. E. Rep. 822; Pa. Steel Co. v. Elmore & H. Co., 175 F. 176; Wellington v. Downer, 104 Mass. 64; Devlin v. Smith, 89 N.Y. 470; Savings Bank v. Ward, 100 U.S. 195; Waters-Pierce Oil Co. v. Deselms, 212 U.S. 179; R. & D. Railroad v. Elliott, 149 U.S. 272; Penn. Ry. Co. v. Hummell, 167 F. 89.)

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A contention that defendant is liable because, though an automobile is not inherently a dangerous thing, if it has a defective wheel, it is an imminently dangerous thing, and if imminently dangerous, the same rule follows as though it were an inherently dangerous thing, cannot be sustained. (Cadillac M. C. Co. v. Johnson, 221 F. 801; Titus v. R. R. Co., 136 Penn. St. 618; Statler v. Ray Mfg. Co., 125 A.D. 71; Statler v. Ray Mfg. Co., 195 N.Y. 478; Marquardt v. Engine Co., 122 F. 374.)

Edgar T. Brackett for respondent. An automobile, propelled by explosive gases, certified and put out, as here conceded, to run at a speed of fifty miles an hour, to be managed by whomsoever may purchase it, is a machine inherently dangerous. (Texas v. Barrett, 67 F. 214; Statler v. Ray, 195 N.Y. 478; Torgeson v. Schultz, 192 N.Y. 156; Kahner v. Otis, 96 A.D. 169; Favo v. Remington, 67 A.D. 414; Olds Motor Works v. Shaffer, 145 Ky. 616; Kuelling v. Lean Mfg. Co., 183 N.Y. 78; Cadillac M. C. Co. v. Johnson, 221 F. 801; Thomas v. Winchester, 6 N.Y. 397.) The defendant was the manufacturer of the machine and subject to all the liabilities of a manufacturer, even if it purchased and did not itself actually put together the defective wheel which caused the plaintiff's injury. (People ex rel. v. Morgan, 48 A.D. 395; Norris v. Com., 27 Penn. St. 494; Tidewater, etc., v. United States, 171 U.S. 210; Commonwealth v. Keystone, 156 Penn. St. 500; New Orleans v. Le Blanc, 34 La. Ann. 596; New Orleans v. Ernst, 35 La. Ann. 746; State v. Wiebert, 51 La. Ann. 122; Allen v. Smith, 173 U.S. 389; Hegeman v. W. R. R. Corp., 13 N.Y. 9; Carlson v. Phoenix, etc., Co., 132 N.Y. 273.)


The defendant is a manufacturer of automobiles. It sold an automobile to a retail dealer. The retail dealer resold to the plaintiff. While the plaintiff was in the car, it suddenly collapsed. He was

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thrown out and injured. One of the wheels was made of defective wood, and its spokes crumbled into fragments. The wheel was not made by the defendant; it was bought from another manufacturer. There is evidence, however, that its defects could have been discovered by reasonable inspection, and that inspection was omitted. There is no claim that the defendant knew of the defect and willfully concealed it. The case, in other words, is not brought within the rule of Kuelling v. Lean Mfg. Co. (183 N.Y. 78). The charge is one, not of fraud, but of negligence. The question to be determined is whether the defendant owed a duty of care and vigilance to any one but the immediate purchaser.

The foundations of this branch of the law, at least in this state, were laid in Thomas v. Winchester (6 N.Y. 397).A poison was falsely labeled. The sale was made to a druggist, who in turn sold to a customer. The customer recovered damages from the seller who affixed the label. 'The defendant's negligence, ' it was said, 'put human life in imminent danger.' A poison falsely labeled is likely to injure any one who gets it. Because the danger is to be foreseen, there is a duty to avoid the injury. Cases were cited by way of illustration in which manufacturers were not subject to any duty irrespective of contract. The distinction was said to be that their conduct, though negligent, was not likely to result in injury to any one except the purchaser. We are not required to say whether the chance of injury was always as remote as the distinction assumes. Some of the illustrations might be rejected to-day. The principle of the distinction is for present purposes the important thing.

Thomas v. Winchester became quickly a landmark of the law. In the application of its principle there may at times have been uncertainty or even error. There has never in this state been doubt or disavowal of the principle itself. The chief cases are well known, yet to recall

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some of them will be helpful. Loop v. Litchfield (42 N.Y. 351) is the earliest. It was the case of a defect in a small balance wheel used on a circular saw. The manufacturer pointed out the defect to the buyer, who wished a cheap article and was ready to assume the risk. The risk can hardly have been an imminent one, for the wheel lasted five years before it broke. In the meanwhile the buyer had made a lease of the machinery. It was held that the manufacturer was not answerable to the lessee. Loop v. Litchfield was followed in Losee v. Clute (51 N.Y. 494), the case of the explosion of a steam boiler. That decision has been criticised (Thompson on Negligence, 233; Shearman & Redfield on Negligence [6th ed.], § 117); but it must be confined to its special facts. It was put upon the ground that the risk of injury was too remote. The buyer in that case had not only accepted the boiler, but had tested it. The manufacturer knew that his own test was not the final one. The finality of the test has a bearing on the measure of diligence owing to persons other than the purchaser (Beven, Negligence [3d ed.], pp. 50, 51, 54; Wharton, Negligence [2d ed.], § 134).

These early cases suggest a narrow construction of the rule. Later cases, however, evince a more liberal spirit. First in importance is Devlin v. Smith (89 N.Y. 470). The defendant, a contractor, built a scaffold for a painter. The painter's servants were injured. The contractor was held liable. He knew that the scaffold, if improperly constructed, was a most dangerous trap. He knew that it was to be used by the workmen. He was building it for that very purpose. Building it for their use, he owed them a duty, irrespective of his contract with their master, to build it with care.

From Devlin v. Smith we pass over intermediate cases and turn to the latest case in this court in which Thomas v. Winchester was followed. That case is Statler v. Ray Mfg. Co. (195 N.Y. 478, 480). The defendant

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manufactured a large coffee urn. It was installed in a restaurant. When heated, the urn exploded and injured the plaintiff. We held that the manufacturer was liable. We said that the urn 'was of such a character inherently that, when applied to the purposes for which it was designed, it was liable to become a source of great danger to many people if not carefully and properly constructed.'

It may be that Devlin v. Smith and Statler v. Ray Mfg. Co. have extended the rule of Thomas v. Winchester. If so, this court is committed to the extension. The defendant argues that things imminently dangerous to life are poisons, explosives, deadly weapons--things whose normal function it is to injure or destroy. But whatever the rule in Thomas v. Winchester may once have been, it has no longer that restricted meaning. A scaffold (Devlin v. Smith, supra) is not inherently a destructive instrument. It becomes destructive only if imperfectly constructed. A large coffee urn (Statler v. Ray Mfg. Co., supra) may have within itself, if negligently made, the potency of danger, yet no one thinks of it as an implement whose normal function is destruction. What is true of the coffee urn is equally true of bottles of aerated water (Torgeson v. Schultz, 192 N.Y. 156). We have mentioned only cases in this court. But the rule has received a like extension in our courts of intermediate appeal. In Burke v. Ireland (26 A.D. 487), in an opinion by CULLEN, J., it was applied to a builder who constructed a defective building; in Kahner v. Otis Elevator Co. (96 A.D. 169) to the manufacturer of an elevator; in Davies v. Pelham Hod Elevating Co. (65 Hun, 573; affirmed in this court without opinion, 146 N.Y. 363) to a contractor who furnished a defective rope with knowledge of the purpose for which the rope was to be used. We are not required at this time either to approve or to disapprove the application of the rule that was made in these cases. It is enough that they help to characterize the trend of judicial thought.

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Devlin v. Smith was decided in 1882.A year later a very similar case came before the Court of Appeal in England (Heaven v. Pender, L. R. [ 11 Q. B. D.] 503). We find in the opinion of BRETT, M. R., afterwards Lord ESHER (p. 510), the same conception of a duty, irrespective of contract, imposed upon the manufacturer by the law itself: 'Whenever one person supplies goods, or machinery, or the like, for the purpose of their being used by another person under such circumstances that every one of ordinary sense would, if he thought, recognize at once that unless he used ordinary care and skill with regard to the condition of the thing supplied or the mode of supplying it, there will...

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