McCaffrey v. Mossberg & Granville Mfg. co.

Citation50 A. 651,23 R.I. 381
CourtUnited States State Supreme Court of Rhode Island
Decision Date11 December 1901
PartiesMcCAFFREY v. MOSSBERG & GRANVILLE MFG. co.

Action by Frank McCaffrey against the Mossberg & Granville Manufacturing Company. Demurrer to the declaration sustained.

Page & Page & Cushing, for plaintiff.

Comstock & Gardner, for defendant.

STINESS, C. J. This is an action of trespass on the case for negligence. The declaration alleges, in substance, that the plaintiff was in the employ of George W. Dover, a manufacturing jeweler, and while engaged in operating a drop press, in which was a heavy weight held by a hook, the hook broke, and the weight fell upon his hand and injured it; that the machine was manufactured by the defendant and sold to Dover; that it was the duty of the defendant to use due care in the manufacture thereof, but that the machine was negligently built and defective, in this: that the hook was made of iron or steel of poor quality, of insufficient size; that the hook had been improperly welded, with cracks or crevices through the hook; that the defendant knew, or had reason to know, and but for the want of reasonable care would have known, that the machine, when it was sold was a dangerous appliance, liable to endanger the life and limb of an operator, using due care, by the breaking of said hook and the falling of the weight The defendant demurs to the declaration. The case raises the question whether the maker of a machine, which he sells to another, is liable to a third person for injuries arising from negligence in its construction. This question has been frequently before other courts, but it has not been raised before in this state. Cases which involve the liability of a defendant to those with whom he does not stand in privity of contract may be grouped into three classes: (1) Where the thing causing the injury is of a noxious or dangerous kind; (2) where the defendant has been guilty of fraud or deceit in passing off the thing; (3) where the defendant has been negligent only in some respect with reference to the sale or construction of a thing not imminently dangerous.

The principle which governs the first class of cases is that one who deals with an imminently dangerous article owes a public duty, to all to whom it may come and whose lives may be endangered thereby, to exercise caution adequate to the peril involved. This principle has been applied in many cases of the sale of poisonous drugs under a false label. Such was the leading case in this country of Thomas v. Winchester, 6 N. Y. 397, 57 Am. Dec. 455, in which, as one ground of inference of public duty, the court said: "Every man who by his culpable negligence causes the death of another, although without intent to kill, is guilty of manslaughter." Hence it argued that the duty of exercising caution did not arise out of the contract of sale, and so to be confined to the immediate vendee, but that the wrong done was the putting out of the poison, as an article of merchandise, to be sold and afterwards used, under another name, by some person then unknown. The same opinion has been expressed in Wellington v. Oil Co., 104 Mass. 64, in which dangerous naphtha was sold; in Norton v. Sewall, 106 Mass. 143, 8 Am. Rep. 298, in which laudanum was sold for rhubarb; in Davis v. Guarnieri, 45 Ohio St. 470, 15 N. E. 350, 4 Am. St. Rep. 548, Elkins v. McKean, 79 Pa. 493, and in George v. Skivington, l. R. 5 Exch. 1, relating to inherently dangerous articles; and Devlin v. Smith, 89 N. y. 470, 42 Am. Rep. 311, where the defect in a scaffold was held to be imminently dangerous. The principle of these cases may be supported on two grounds: That of an illegal act, when, as in most states, there are statutory provisions which impose a public duty upon those who deal with poisons and dangerous substances, like gunpowder, naphtha, etc., and that of the duty which the law Imposes upon every one to avoid acts which in their nature are dangerous to the lives of others. Of this class familiar examples are those who allow vicious animals to run at large, and who throw deadly missiles into a gathering of people. The putting forth of a dangerous article or substance which is quite as sure to injure somebody is not essentially different A similar principle governs the second class of cases, in which the degree of danger in the thing itself may be less, but where the seller actually knows of the danger in the article, and puts it forth by some fraud or deceit. In such cases the breach of duty grows out of the fraud or deceit in the sale, and it extends to persons injured thereby who may reasonably be deemed to be within the contemplation of the parties to the transaction. Thus, in Levy v. Langridge, 4 Mees. & W. 337, the allegations were that a father bought a gun of the defendant for the use of himself and sons, upon the special warranty that it was made by a certain manufacturer, and that it was a good, safe, and secure gun, whereas it was unsafe, ill made, and dangerous; that the defendant was guilty of willful deceit, negligence, and improper conduct in the sale; and that the gun burst in the hands of a son. The judgment was that, as there was fraud, and damage, the result of that fraud, not from an act remote and consequential, but one contemplated by the defendant at the time as one of its results, the party guilty of the fraud was responsible to the party injured. In Lewis v. Terry, 111 Cal. 39, 43 Pac. 398, 31 L. R. A. 220, 52 Am. St. Rep. 146, the defendant sold a folding bed to the plaintiff's landlord, knowing it to be dangerous because of concealed defects; and he was held to be liable to the plaintiff, who had hired the furnished room, for an injury caused by such defect. The court said: "The fact insisted upon by respondent, that a bed is not ordinarily a dangerous instrumentality, is of no moment in this case. If mere nonfeasance, or, perhaps, misfeasance, was the extent of the wrong charged against defendants, that consideration would be important. Thomas v. Winchester, 6 N. Y. 397, 57 Am. Dec. 455. But the fact that such articles are in general not dangerous would seem to enhance the wrong of representing one to be safe for use when known to be really unsafe, for the danger is thus rendered more insidious." In Davies v. Elevating Co., 65 Hun, 573, 20 N. Y. Supp. 523, and 76 Hun, 289, 27 N. Y. Supp. 709, remarks were made to the effect that the action could be maintained against the builder of a derrick for a painter by the administratrix of an employe killed by...

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