EI Dupont de Nemours & Co. v. Wright

• Decision Date: 22 January 1945
• Docket Number: No. 9818.,9818.
• Citation: 146 F.2d 765
• Parties: E. I. DUPONT DE NEMOURS & CO. v. WRIGHT.
• Court: U.S. Court of Appeals — Sixth Circuit

146 F.2d 765 (1944)

E. I. DUPONT DE NEMOURS & CO. v. WRIGHT.

No. 9818.

Circuit Court of Appeals, Sixth Circuit.

December 7, 1944.

Rehearing Denied January 22, 1945.

Robert T. McCracken, of Philadelphia, Pa., and Abel Klaw, of Wilmington, Del. (Robert T. McCracken, of Philadelphia, Pa., Abel Klaw, of Wilmington, Del., and Charles W. Milner and Bullitt & Middleton, all of Louisville, Ky., on the brief), for appellant.

J. Verser Conner, of Louisville, Ky., for appellee.

Before SIMONS, ALLEN, and McALLISTER, Circuit Judges.

SIMONS, Circuit Judge.

The accident which caused the death of the appellee's decedent was the result of the rupture and subsequent ignition of a drum of nitro-cellulose manufactured by the appellant and shipped by it to the Jones-Dabney Company, a lacquer manufacturer, in Louisville, Kentucky. The decedent was an employee of the consignee, and the consignor appeals from a judgment for the decedent's administratrix on ground that it was not negligent and, in the alternative, if negligence was proved it was not the proximate cause of the death, the chain of causation being broken by the independent intervening negligence of the consignee.

Nitro-cellulose is not, strictly speaking, an explosive, though it is highly inflammable. When wet it cannot be set off by concussion. The container here involved was moistened with a 30% solution of alcohol which, while it is sufficient to prevent detonation, increases the fire hazard. The shipment containing the destroyed drum, arrived at the Jones-Dabney plant by rail, in a sealed car. Upon arrival the drums were shunted to the ground upon a wooden slide with steel rails. The drum which failed was then pushed across a concrete pavement and skidded down a concrete chute with a drop of 3½ feet in a length of 14½ feet.

There is no dispute as to the physical causes of the accident. The experts agreed that the sliding of the steel drum upon the rough concrete surface of the ramp, caused a spark which ignited vapor released by a loosening of the head of the drum on the way down the ramp. The combustion was so violent that the drum was hurled 60 feet to where the decedent was in an elevator, and he received burns which shortly caused his death. Men on the ground outside the plant were knocked down, and a building some distance away was set on fire.

No question is raised as to the inherently dangerous character of nitro-cellulose, nor as to the obligation of the appellant to persons other than those in contractual relation with it, under the doctrine of MacPherson v. Buick Co., 217 N.Y. 382, 111 N.E. 1050, L.R.A.1916F, 696, Ann.Cas. 1916C, 440, for lack of due care in its manufacture, packaging, and shipment. The appellant contends, however, that it was without fault in any respect. It shipped the material in a standard form of container, generally used by manufacturers of nitro-cellulose for shipment to Europe under the lend-lease agreement, and approved for that purpose by the Bureau of Explosives of the Interstate Commerce Commission. The car containing the shipment was marked with four red and white placards, one on each end and one on each of the side doors of the car, with words in large red letters, "Dangerous," "Highly Inflammable," "Keep Lights and Fire Away." The placards also contained in large letters the injunction, "Handle Carefully." On each drum was pasted a sign reading "Nitro-Cellulose," "Caution, Do Not Use Near an Open Flame or Fire." The appellant also points out that there was no proof of any infirmity in the drum, nor proof that the nitro-cellulose was improperly manufactured or packed. It therefore urges that there was a total absence of proof of negligence.

On the other hand, the record discloses that the Jones-Dabney Company had been using nitro-cellulose in the manufacture of its lacquer ever since 1925, and had purchased a large part of its supply from the appellant, though none for a year or two before the accident. In previous purchases the nitro-cellulose had been shipped in 14-gauge galvanized drums which were always returned to the shipper and re-used hundreds or more of times; that previous shipments had always been handled, upon arrival, in the identical manner of the present shipment; that this shipment was contained in 18-gauge black painted steel drums which were to be used only once. The black drums had little more than half the weight of the galvanized drums, and being protected only by a coating of paint would generate a spark when slid over a rough surface. It is therefore the contention of the appellee that in addition to the customary warnings of the dangerous and highly inflammable character of the shipment, the consignee should have been given warning that the new drums were less sturdy than the old and that they could not be handled as roughly; that the failure of the appellant to give such warning constituted actionable negligence.

There was evidence from which the jury could have found that the black drum was not a standard container for nitro-cellulose in the domestic lacquer trade, several lacquer manufacturers testifying that they had never seen any but the heavy galvanized drums used for this purpose; that the black drum is less sturdy than the galvanized, and more likely to permit an escape of inflammable vapors. There was also evidence that it was safe to skid the galvanized drum on concrete and that such skidding was practical and necessary, and conformed to the usual practice of all Louisville lacquer manufacturers. The evidence justified an inference that the appellant knew, or should have known, that its consignee followed common practice of skidding the drums at its plant, and that the appellant knew that its consignee had never before received shipments of nitro-cellulose from it except in heavy galvanized iron drums. There was also evidence that the appellant was the only manufacturer of nitro-cellulose which used the lighter black drums in the domestic trade. The warning placards, while they apprised the consignee of the dangerous and highly inflammable character of nitro-cellulose when its vapors were exposed to flame, gave no notice to the consignee of the weaker character of the black drum, nor of its tendency to spark upon friction with hard rough surfaces. This, we think, raised an issue of fact for the jury with respect to negligence, and we find no error in the denial of a motion for directed verdict upon that ground.

The usual test for determining causal relation between some failure of duty and an injurious result which follows. is the foreseeability of injury by the alleged negligent actor. Pease v. Sinclair Refining Co., 2 Cir., 104 F.2d 183, 123 A. L.R. 933; Standard Oil Co. v. Tierney, 92 Ky. 367, 17 S.W. 1025, 14 L.R.A. 677, 36 Am.St.Rep. 595; Snydor v. Arnold, 122 Ky. 557, 92 S.W. 289; Louisville Home Telephone Co. v. Gasper, 123 Ky. 128, 93 S. W. 1057, 9 L.R.A.,N.S., 548. In Johnson v. Kosmos Portland Cement Co., 6 Cir., 64 F.2d 193, we had occasion to give painstaking study to the considerations upon which the doctrine of proximate cause rests, as its development stemmed from the leading ...