Cooley v. Quick Supply Co.

• Decision Date: 18 September 1974
• Docket Number: No. 2--56030,2--56030
• Citation: 221 N.W.2d 763
• Parties: Jack C. COOLEY, Appellee, v. QUICK SUPPLY COMPANY, an Iowa corporation, Appellant.
• Court: Iowa Supreme Court

Page 763

221 N.W.2d 763

Jack C. COOLEY, Appellee, v. QUICK SUPPLY COMPANY, an Iowa corporation, Appellant.

No. 2--56030.

Supreme Court of Iowa.

Sept. 18, 1974.

Rehearing Denied Oct. 10, 1974.

Dickinson, Throckmorton, Parker, Mannheimer & Raife, Des Moines, for appellant.

Reynoldson, Brown & Van Werden, Osceola, for appellee.

Considered en banc.

LeGRAND, Justice.

This appeal had its origin in an accident which inflicted serious personal injuries to plaintiff when several sticks of dynamite he was holding exploded. Claiming a defect in the fuse used to ignite the dynamite, plaintiff seeks recovery from Quick Supply Company, wholesale distributor which supplied the fuse to the retailer from whom plaintiff ultimately bought it. A jury trial resulted in a verdict and judgment for plaintiff, which we affirm.

Plaintiff asserted a right of recovery based, first, on the doctrine of strict liability and, in a separate count, he asked damages because defendant was negligent in failing to provide adequate warning concerning the dangers attendant upon the use of the product.

To set the stage for our discussion, it is necessary to recount the circumstances very briefly. Other facts will be related as they bear upon the particular issues involved. Plaintiff and several friends, Steve Roberts and James Kilkenny, none of whom had any previous experience with dynamite, decided to use that explosive to kill undesirable fish which had been multiplying in a pond located on a farm plaintiff was working. Plaintiff purchased five sticks of dynamite, some dynamite caps, and approximately 10 or 12 feet of safety fuse, also referred to in the record as dynamite fuse, at Mateer Implement Company on the day of the accident.

Late in the afternoon the three went to the pont to try their experiment. They did this in the following manner. First they attached a dynamite stick to a board so it would not sink. They then affixed a blasting cap to the dynamite, inserted a 1 1/2 or 2-foot length of fuse, and lit the fuse by means of a cigarette lighter. After the fuse was lit, the stick and attached board were tossed into the pond at the desired location. The resulting explosion was supposed to kill the unwanted fish.

This procedure was followed twice without incident, but with unsatisfactory results as to the kill. On the third try the men decided to double the charge. They tied two sticks of dynamite together and repeated the pattern except that this time no float board was used. Plaintiff held the dynamite while one of the others lit the fuse. It exploded in his hand, causing severe, painful, and permanent injuries. We need not describe the extent of plaintiff's damages since the amount of the judgment is not an issue on this appeal.

In the strict liability count the only product defect submitted was the allegation that the fuse 'did not appear to be ignited when in fact it was ignited'; and the sole negligence relied on in the ordinary tort count was defendant's failure to warn as to the safe and proper use of that product. No attack is made on either of the other two components--the dynamite itself or the dynamite caps--and our consideration is accordingly limited to the condition and use of the fuse.

Defendant's appeal presents five issues for review. We state them as defendant did although not in the same order. They are: (1) plaintiff should be barred from recovery because he voluntarily engaged in an extra hazardous activity which caused his injuries; (2) plaintiff's theory of liability is contrary to the laws of nature, is unsupported by expert testimony, and controverted by expert testimony; (3) the trial court improperly instructed the jury in a manner which permitted it to find defendant liable on both strict liability and ordinary negligence and to designate each as The proximate cause of plaintiff's injuries; (4) defendant wholesaler is not bound to observe an unreasonable standard of care which would require it to give suitable warnings to each retail purchaser concerning the propensities and dangers of safety fuses; and (5) plaintiff failed to show the fuse was in a defective condition at the time it left the hands of defendant wholesaler.

I. First we treat the argument plaintiff's claim is barred by 'his conduct as an adult person of normal intelligence in engaging in an extra hazardous activity.' Apparently this is intended to allege plaintiff was guilty of contributory negligence and had assumed the risk of injury, both as a matter of law. Although this issue is not framed in the usual language of those two affirmative defenses, both of them were pled and were submitted to the jury. We accordingly assume defendant is relying on them here.

The jury was instructed on assumption of risk in the strict liability claim and on contributory negligence in the other count. This was proper under Rosenau v. City of Estherville, 199 N.W.2d 125, 133 (Iowa 1972), and no objection is made to that method of submission. See also 63 Am.Jur.2d Products Liability, § 150 (1972). Defendant's argument rather is that these questions should have been decided against plaintiff as matters of law.

We have said repeatedly questions of contributory negligence and assumption of risk are ordinarily for determination by the jury and should be decided as matters of law only in exceptional cases. Rule 344(f), (10), Rules of Civil Procedure; Bessman v. Harding, 176 N.W.2d 129, 130 (Iowa 1970). This is not one of those exceptional cases.

The detonation of dynamite sticks by means of dynamite caps and fuse is an accepted method of using this explosive for a multiplicity of purposes in industry, farming and other pursuits. Plaintiff's explanation for the alleged premature explosion is that the fuse was defective and did not give the customary indications of ignition, as had been the case with the two previous explosions, when plaintiff was warned the fuse was lit by the emission of smoke and a sputtering noise.

There was substantial testimony from which the jury could find plaintiff attached a 2-foot length of fuse to the final charge; that the retail salesman had told him--incorrectly--that it burned at the rate of one foot per minute; and that the fuse gave off no smoke, no odor, no noise before exploding. Whether plaintiff was negligent in failing to more quickly toss away the dynamite sticks, and the related question whether it was contributory negligence in any event to hold the dynamite sticks while lighting them, were matters to be decided by the jury, not the court.

This is equally true of the assumption of risk issue. The elements of assumption of risk were discussed recently in King v. Barrett, 185 N.W.2d 210, 213 (Iowa 1971). We need not repeat them here. We hold plaintiff did not assume the risk of injury as a matter of law under this record.

II. We next dispose of the defendant's claim plaintiff should have been denied recovery because his legal theory was 'contrary to the laws of nature, unsupported by expert testimony, and controverted by expert testimony.' The issue thus raised is that the evidence is insufficient to sustain the verdict because the physical facts establish beyond doubt the incredibility of plaintiff's theory. See Howie v. Ryder & McGloughlin, 244 Iowa 861, 865, 58 N.W.2d 389, 391 (1953); Jacobson v. Camden, 236 Iowa 976, 980, 20 N.W.2d 407, 409 (1945); Scott v. Hansen, 228 Iowa 37, 41, 42, 289 N.W. 710, 713 (1940).

We consider this matter, of course, in the context in which the case reaches us. As already stated, the products liability count was submitted to the jury on the sole basis the safety fuse was defective because, when ignited, it did not give any of the usual appearances or warnings of being ignited. We should distinguish between Original ignition and Later burning, although the difference may at first appear to be without substance. It is the former upon which plaintiff relies; but it is the latter which defendant seems to argue so vigorously here. As we will demonstrate later, there is ample evidence to support plaintiff's claim the fuse ignited without any signs of ignition. Perhaps (although we do not so hold) defendant's argument about the physical facts rule has merit as far as the ultimate burning of the fuse is concerned. However, a finding that plaintiff's evidence dealing with the burning of the fuse was 'contrary to the established physical facts' or was 'inherently incredible,' as we say in the cases cited, would not save defendant from its present dilemma.

Two experts testified. One, Ralph S. Hale, stated he was familiar with safety fuse, knew its composition, the method of its manufacture, and how it reacted when ignited. He testified it emitted smoke, caused an odor, and occasioned a sputtering or, as the witness described it, a 'spit.' He testified it was impossible for the fuse to be ignited without these three results, all of which, of course, would be readily apparent to the senses. Incidentally, plaintiff and several other witnesses testified unequivocally

'Q. Mr. Balboni, have you ever burned plaintiff's injury occurred without these telltale warnings being present.

David Balboni also testified as an expert for defendant. He, too, was thoroughly familiar with dynamite and with the type of fuse used here. He corroborated generally the facts previously given by Mr. Hale, and parts of his testimony were even more helpful to defendant than that of Mr. Hale.

On the question of ignition of the fuse, however, we believe Mr. Balboni's testimony was extremely helpful to plaintiff. He said the ignition of the fuse might be 'masked' if ignited under certain conditions. He testified the use of a cigarette lighter--the method used here--could produce that effect.

It is clear there is an important line to be drawn between the circumstances existing when the fuse ignited and those present during the subsequent burning of the fuse after ignition. As already pointed out, plaintiff alleges...