Guinan v. Famous Players-Lasky Corp.

Citation167 N.E. 235,267 Mass. 501
Decision Date06 June 1929
CourtUnited States State Supreme Judicial Court of Massachusetts

267 Mass. 501
167 N.E. 235


Supreme Judicial Court of Massachusetts, Suffolk.

June 6, 1929.

Exceptions from Superior Court, Suffolk County; Winfred H. Whiting, Judge.

Action by Madeline F. Guinan against the Famous Players-Lasky Corporation. Verdict for plaintiff, and defendant brings excepttions. Exceptions overruled.

[267 Mass. 508]

[167 N.E. 239]

G. Alpert, F. D. Harrigan, and J. P. Feeney, all of Boston, for plaintiff.

K. C. Parker and J. M. Morrison, both of Boston, for defendant.

H. F. Hathaway and J. T. Hughes, both of Boston, for Boston Elevated Ry. Co.


This is an action brought by a passenger in a street car to recover for personal injuries received on January 3, 1925, as a result of the ignition and alleged explosion of a quantity of scrap motion picture film. It was tried with others against this defendant, and with cases against John F. Bowditch and the Boston Elevated Railway Company. Before the trial all the parties to the various actions entered into a written stipulation which is printed in the record. The jury returned a verdict for the plaintiff in this case; it is before us on the defendant's exceptions to the refusal of the trial judge to direct a verdict in its favor, to certain parts of the judge's charge to the jury, to the failure of refusal to give certain requests for instructions, and to certain rulings upon the admission and exclusion of evidence.

The jury were warranted in finding the following facts: The defendant is a large producer of motion pictures and a distributor of films, but does not manufacture them. It leases the films to exhibitors, who, after displaying the pictures, return them. At the time of the accident the defendant employed several girls to inspect the films after their return, in a room provided for the purpose, and if a film was damaged by wear or use the girls would cut out the damaged [267 Mass. 509]part with scissors; the remaining ends would then be pieced together. The film so deleted is known as waste or scrap film; it consists of pieces 1 3/8 inches in width and varies in length from less than an inch to 3 or 4 feet. A metal receptacle for the scrap film was provided for each girl, who emptied the receptacle as often as required into large metal barrels kept in fireproof vaults.

One John F. Bowditch, a brush manufacturer, used scrap film in his business to make cement for brushes by a certain ‘melting down’ process which involved the use of acetone. For three years before the day of the accident he had used scrap film obtained from other motion picture concerns. About a week before the accident he telephoned one Doherty, the head shipper of the defendant, told him his name, that he used scrap film in his business, and asked for some. Doherty said that he had none on hand, but if Bowditch would call up later he would give him some. On the morning of the day of the accident Bowditch telephoned Doherty, asking if he had any scrap film on hand, and Doherty replied that he had and would give it to him, if he would send over for it. Bowditch then sent his adult son, John C. Bowditch, and one Shirley, an employee, with a note addressed to Doherty saying: ‘This is the party that you are going to give this waste film to.’ Shirley arrived before the younger Bowditch

[167 N.E. 240]

and presented the note to Doherty; he brought with him two burlap bags; he left them on the floor of the corridor, which was part of the shipping room, and went out to lunch. While he was out the younger Bowditch arrived and was shown by Doherty to the vaults where the scrap film was kept.

Bowditch testified that he got two burlap bags from his father, and that they had been brought to the defendant's place of business by Shirley; that they were on the floor in the vault; that he started filling them with scrap film and while he was doing so Doherty was standing in the doorway of the vault; that when he had nearly filled the first bag Shirley came in, but Doherty was not there with Shirley at any time while he (Bowditch) was there; that Shirley went out before he did with a bag full of scrap film; that when he had half filled his bag Doherty came back and stayed until [267 Mass. 510]it was nearly filled, about five minutes. Doherty testified that when Shirley arrived and handed him the note he said that another man was coming with a truck; that upon taking Bowditch to the door of the vault some one called him, and he left Bowditch and went into the shipping room, where he found Shirley had returned; that he pointed out the way for Shirley to go to the vaults and told him that he was going to lunch; to wait around a few minutes and he would be back; that on his return both Shirley and Bowditch were gone; that at no time did he see the burlap bags, and that he expected to return before Shirley and Bowditch left. Shirley testified that on the way out of the building from the vault after his bag had been filled with scrap film he had the bag in his hand, and at that time Doherty spoke to him. Upon this conflicting testimony it was the exclusive province of the jury to decide what testimony they would believe. Bartlett v. Medford, 252 Mass. 311, 315,147 N. E. 739.

One of the bags containing the scrap film was taken by Bowditch to his father's place of business. Shirley, intending to take the other bag to his employer's place of business, boarded a street car of the Boston Elevated Railway Company. After the doors of the car were closed he placed the bag against the door on the side he entered. From the pit of the car to the main floor was a step of about 10 inches. Underneath the floor, with an opening covered by a metal shield in this riser or 10-inch step, was a heater. The bag of scrap film was either against the shield of the heater or close to it. From the point where Shirley boarded the car up to the time the accident occurred the bag had been moved once, but except for having been lifted and replaced its position remained unchanged. There was no evidence as to the temperature inside the car just before the accident, but the temperature outside at that time was 28° Fahrenheit. Just before the car reached the Park Street station in the subway the bag burst into flame, causing the injuries to the plaintiff for which this action is brought.

Shirley testified that he heard a grinding and snapping noise; that he looked around and saw a rent or tear about seven inches long near the opening of the bag; that he saw [267 Mass. 511]sparks there and when he attempted to put them out the flames became a solid mass. Several witnesses who were on the car variously described what occurred as a flash like a ‘streak of lightning;’ ‘a sudden mass of flame went up in the middle of the car and spread over the whole car;’ ‘the car was a roaring furnace.’ There was evidence of a report, which was described as the sound of a ‘pistol shot,’ a ‘firecracker,’ a ‘flashlight picture,’ a ‘little torpedo,’ ‘just like something exploded,’ and of a ‘hissing noise like escaping steam.’ This was followed by a panic among the passengers, who endeavored to escape from the car. The plaintiff suffered from burns on her hands, face and body, and from other injuries from being trampled upon.

The general rule is that the manufacturer of an article is not liable for negligence in its manufacture to third persons with whom he has no contractual relations. Davidson v. Nichols, 11 Allen, 514, 518;Lebourdais v. Vitrified Wheel Co., 194 Mass. 341, 343, 80 N. E. 482;Pitman v. Lynn Gas & Electric Co., 241 Mass. 322, 323, 135 N. E. 223;Christensen v. Bremer, 263 Mass. 129, 160 N. E. 410. In the absence of negligence a retail dealer, in selling a commodity not inherently dangerous, is not liable in tort for its defective condition which causes injury to another. Barrango v. Hinckley Rendering Co., 230 Mass. 93, 94, 119 N. E. 746.

In the sale of an article not inherently dangerous the seller cannot be charged with negligence unless it be shown that he knew or ought to have known of its unsafe and harmful qualities. Kusick v. Thorndike & Hix, Inc., 224 Mass. 413, 414, 112 N. E. 1025. It is a well-recognized exception to this general rule that where an article is recognized as inherently dangerous to life, limb or property, if the seller delivers such an article to another person, without giving notice to that person of its dangerous qualities, and the person to whom it is delivered has no knowledge of such dangerous properties, the seller may be liable to all other persons for injuries which may be reasonably contemplated as likely to result, and which in fact do result to other persons whose negligence did not contribute to the injury. Carter v. Towne, 98 Mass. 567, 96 Am. Dec. 682;Wellington v. Downer Kerosene Oil Co., 104 Mass. 64, 67;[267 Mass. 512]Jacobs v. New York, New Haven & Hartford Railroad, 212 Mass. 96, 98, 98 N. E. 688,40 L. R. A. (N. S.) 41;Thornhill v. Carpenter-Morton Co., 220 Mass. 593, 597, 108 N. E. 474;

[167 N.E. 241]

Thomas v. Winchester, 6 N. Y. 397, 57 Am. Dec. 455;Huset v. J. I. Case Threshing Machine Co. (C. C. A.) 120 F. 865, 61 L. R. A. 303, and cases cited.

In answer to three special questions the jury found that the scrap film packed as described as it left the defendant's premises was dangerous to life and property, highly inflammable, and liable to explode. It is settled that whether the defendant was liable in damages to the plaintiff because of the inherently dangerous properties of its article, of which no notice was given, and of which the purchaser had no knowledge, was upon all the evidence presented by the record a question of fact for the jury under appropriate instructions. Thornhill v. Carpenter-Morton Co., supra, at page 598 (108 N. E. 474), and cases cited.

The jury were warranted in finding that there had been a delivery of the scrap film to Shirley by Doherty. They reasonably could infer from the testimony of Bowditch and Shirley that...

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