Crandall v. Stop & Shop, Inc.

• Decision Date: 09 February 1937
• Docket Number: Gen. No. 38697.
• Citation: 288 Ill.App. 543,6 N.E.2d 685
• Court: United States Appellate Court of Illinois
• Parties: CRANDALL v. STOP & SHOP, INC.

288 Ill.App. 543

6 N.E.2d 685

CRANDALL

v.STOP & SHOP, INC.

Gen. No. 38697.

Appellate Court of Illinois, First District, Second Division.

Feb. 9, 1937.

Appeal from Superior Court, Cook County; Marcus Kavanagh, Judge.

Action by Marie M. Crandall against Stop & Shop, Incorporated. From a judgment in favor of plaintiff, defendant appeals.

Reversed. Hinshaw & Culbertson, of Chicago (Oswell G. Treadway, of Chicago, of counsel), for appellant.

Murphy O. Tate, of Chicago, for appellee.

FRIEND, Justice.

Marie M. Crandall brought an action to recover damages for personal injuries sustained while opening a glass jar containing fruit salad purchased from the defendant, Stop & Shop, Inc. The jury returned a verdict in her favor for $3,500, upon which judgment was entered, and this appeal followed.

The essential facts are undisputed and disclose that August 19, 1933, plaintiff, while shopping at defendant's store, purchased a jar of fruit preserves put up by G. B. Raffetto, Inc., of New York, as appears from the label on the container. The jar is of glass, is circular in form, about 4? high and 2 1/2? in diameter. It contains a flat circular cover, also made of glass, which is held in place by a one-piece steel spring clamp, 1/4? wide and .018? thick, so formed as to hold the cover in place by tension and fastened by means of lugs at either end which slip over a slight protrusion on the jar just beneath the cover.

About a week after the jar was purchased plaintiff had occasion to use the contents and proceeded to open the jar by placing it on a cabinet table, and, while holding the jar with her left hand, she placed the index finger of her right hand on the cover of the jar, but not on the spring, and with the thumb of her right hand released the lower edge of the lug on the left-hand side of the jar. The spring clamp flew from the jar, striking her in the eye and causing severe injury. It appears from the evidence that plaintiff had never before purchased or opened a jar of this type, that she made no inquiry nor was she told how the jar should be opened, and that no written instructions of any kind accompanied the jar.

The case was tried and submitted to the jury on two theories. Paragraph 4 of the complaint charged negligence, and reads as follows: “That the defendant knew, or in the exercise of ordinary care and caution would have known, that the said jar of fruit salad was unsafe, and that an attempt to open the same would result in the springing of the clamp used on said jar to keep the same securely sealed, to fly in the air and endanger the personal safety of the plaintiff, yet the defendant, well knowing the defective condition of said jar, did sell the same to the plaintiff without then and there warning the plaintiff of the said dangerous condition of said jar.” In the course of the trial defendant made a motion to withdraw this paragraph from consideration of the jury on the ground that no negligence had been shown, but the court overruled the motion, and this is assigned as error. The law is well settled in Illinois, as well as in other jurisdictions, that where a plaintiff bases his cause of action on a negligent breach of duty which the defendant owes plaintiff, the burden is on the latter to prove the negligence charged. Sheffer v. Willoughby, 163 Ill. 518, 522, 45 N.E. 253,34 L.R.A. 464,54 Am.St.Rep. 483;Ash v. Childs Dining Hall Co., 231 Mass. 86, 89, 120 N.E. 396, 4 A.L.R. 1556;Pitman v. Lynn Gas & Elec. Co., 241 Mass. 322, 324, 135 N.E. 223; Bruckel v. J. Milhau's Son, 116 App.Div. 832, 102 N.Y.S. 395, 397;Flaccomio v. Eysink, 129 Md. 367, 374, 100 A. 510, and Miller v. Svensson, 189 Ill.App. 355, 356.

The record here discloses that the jar and contents which plaintiff purchased had been on the market for a number of years, and had been sold not only by defendant, but also by Marshall Field & Co., The Fair and other dealers in Chicago. There is no proof that any other accidents ever resulted from the use of this type of jar, or that defendant had any reason to anticipate trouble or danger in opening it. Therefore the charge “that the defendant knew, or in the exercise of ordinary care and caution would have known, that the said jar of fruit salad was unsafe,” was not in anywise sustained by the evidence, and since no showing is made that defendant knew, or in the exercise of ordinary care and caution could have known, that the jar was unsafe, it logically follows that there was no occasion for warning plaintiff “of the said dangerous condition of said jar.”

Under this paragraph of the complaint, plaintiff evidently proceeded on the theory that the jar was inherently dangerous, and the court assumed this to be true, as appears from its statement in response to defendant's motion for a directed verdict that “it was inherently dangerous.” We find in defendant's brief numerous cases, decided in various jurisdictions including Illinois, holding that appliances which on their face appear to be far more dangerous than the spring clamp on this jar were held to be not inherently and imminently dangerous. One was the case of Miller v. Sears-Roebuck & Co., 250 Ill.App. 340, where a toy pistol caused a spark to ignite a can of gasoline and burn plaintiff. It was there said that “while at most any innocent article might under some extraordinary circumstances injure a person, yet, this does not render the article itself inherently and imminently dangerous.” Another was a gas stove, involved in the case of State v. Consolidated Gas, etc., Co., 146 Md. 390, 126 A. 105, 42 A.L.R. 1237.

In Pitman v. Lynn Gas & Elec. Co., 241 Mass. 322, 135 N.E. 223, 224, plaintiff was injured by a gas flatiron purchased from defendant, a utility company which did not manufacture the appliance but sold it to plaintiff, whose clothes caught fire while using the appliance, causing a severe injury. The court said that “there was, however, nothing inherently dangerous in the flat iron, within the accepted meaning of the term, and it did not come within the class of articles, which are commonly recognized as dangerous to human life, even when used in connection with illuminating gas.”

In Talley v. Beever & Hindes, 33 Tex. Civ.App. 675, 78 S.W. 23, a minor, aged 17, was injured while operating a pear burner manufactured by defendants. The appliance was operated by the use of gasoline, and was used for burning prickly pears on his father's ranch. While pumping air into the cylinder or tank containing gasoline the cylinder burst from pressure within and the gas expelled therefrom became ignited and burned plaintiff. In affirming a judgment for defendant the court approved the rule that one who deals with a thing which is inherently very dangerous owes to the public at large the duty of extreme caution, but stated that the machine in question was not a thing of that nature and that only the standard of ordinary care applied. In that case it was urged that the explosion was evidence of the defendant's negligence, but the court held that such presumption does not arise from the fact alone, citing several cases.

In Peaslee-Gaulbert Co. v. McMath's Adm'r, 148 Ky. 265, 146 S.W. 770, 774, 39 L.R.A. (N.S.) 465, Ann.Cas.1913E, 392, defendant was killed by the explosion of a can of “No. 1, T. Japan Dryer.” A lighted candle had been placed next to the can from which the dryer was being poured when the explosion occurred. There was no label on the can indicating that the contents were of an explosive nature, and evidence was adduced to show that varnishes of this kind were not dangerous unless brought into contact with a lighted flame. Judgment entered for plaintiff was reversed on appeal principally on the ground that “there is no evidence in the record that Peaslee-Gaulbert Company knew that this dryer was explosive or inherently or imminently dangerous, or at all dangerous if used with reasonable care, nor is there any evidence that they had ever heard of any accident caused by its ignition or explosion.”

In Tegler v. Farmers' Union Gas & Oil Co., 124 Neb. 336, 246 N.W. 721, an action was brought for causing the death of plaintiff's four year old daughter by burning as a result of an explosion while the mother was filling an incubator lamp with kerosene. Defendant was engaged in buying and selling gasoline, kerosene, and other oils. The father had purchased a three-gallon can of kerosene from a retailer who had purchased it from defendant. The court held that there was no inherent danger of explosion of kerosene of the test contained in the can purchased, when handled with ordinary care for the well-known use for which the product was intended.

In Rogers v. Kresge Co., 23 Ohio N.P. (N.S.) 448, plaintiff purchased from defendant a quantity of steel wool sold in original packages that came from the manufacturer. The article was used to scour pans, and in so using it certain steel particles from the wool penetrated plaintiff...