Kusick v. Thorndike

• Decision Date: 20 June 1916
• Citation: 224 Mass. 413
• Parties: HAROLD R. KUSICK v. THORNDIKE AND HIX, INCORPORATED.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

224 Mass. 413

HAROLD R. KUSICK v. THORNDIKE AND HIX, INCORPORATED.

Supreme Judicial Court of Massachusetts, Middlesex.

June 20, 1916

March 15 1916.

Present: RUGG, C.

J., LORING, BRALEY DE COURCY, & CROSBY, JJ.

Negligence Dangerous substance, Res ipsa loquitur. Lime.

A canner who buys lime from a manufacturer of that substance, packs it in cans and sells the cans of lime to retail dealers, is not liable for an injury caused by the explosion of one of the cans of lime, when it was being opened by a customer who had purchased it from a retail dealer, in the absence of evidence that lime is a dangerous substance or that the canner of the lime was negligent as to the manner of packing or sealing it in the can, and also in the absence of evidence that, if there was anything defective or dangerous in the composition of the lime, the canner had any reason to know of it.

The fact that a person was injured by the explosion of a can of lime when it was being opened is not in itself evidence that the canner who packed the lime in the can and put it on the market did so negligently.

W. H. Smart &amp T. F. Burns, for the plaintiff, submitted a brief. C. A. Parker, for the defendant.

CROSBY, J. This is an action of tort to recover for personal injuries alleged to have been received by the plaintiff by reason of the explosion of a can of lime. There was evidence that the plaintiff was employed in a bowling alley in which one Hansis was employed as manager; that Hansis sent the plaintiff to the Central Square Hardware Company in Cambridge to buy a can of lime to be used in whitewashing some ceilings; that, after he had returned and Hansis was opening the can with a pocket knife, the lime exploded causing the injuries for which this action is brought.

There was also evidence from which it could have been found that the lime was manufactured by the Rockland Lime Company and was sold by that company to the defendant, who packed it in a can and afterwards sold it to the Central Square Hardware Company.

In an action of this kind, it is well settled that it is necessary to aver and prove negligence in the defendant. Crocker v Baltimore Dairy Lunch Co. 214 Mass. 177 . No negligence of the defendant in this case is shown unless the fact of the explosion be evidence of such negligence. No evidence was offered by the plaintiff to show that lime is an inherently dangerous article. On the other hand, the defendant offered evidence to the effect that it would be impossible for lime in cans, such as was put up by the defendant, to explode. While this evidence might have been disbelieved, still there was an entire absence of affirmative proof that the lime was dangerous in any degree. The distinction between the sale, without notice of its qualities, of an article commonly recognized as inherently dangerous to life or property, and the sale of ordinary merchandise and property, is well recognized. Davidson v. Nichols, 11 Allen, 514. Boston...