Paul v. Consolidated Fireworks Co. of America

• Decision Date: 09 June 1914
• Citation: Paul v. Consol. Fireworks Co. of America , 212 N.Y. 117, 105 N.E. 795 (N.Y. 1914)
• Court: New York Court of Appeals Court of Appeals
• Parties: HENRY PAUL, an Infant, by HENRY M. PAUL, His Guardian ad Litem, Respondent, v. CONSOLIDATED FIREWORKS COMPANY OF AMERICA, Appellant. HENRY M. PAUL, Respondent, v. CONSOLIDATED FIREWORKS COMPANY OF AMERICA, Appellant.

212 N.Y. 117

105 N.E. 795

PAUL

v.CONSOLIDATED FIREWORKS CO. OF AMERICA (two cases).

Court of Appeals of New York.

June 9, 1914.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Henry Paul, an infant, etc., against the Consolidated Fireworks Company of America, and by Henry M. Paul against the same defendant. From a judgment in favor of plaintiff in each case, affirmed by the Appellate Division (148 App. Div. 927,133 N. Y. Supp. 1136) by a divided court, defendant appeals. Reversed, and new trial granted.

I. R. Oeland, of Brooklyn, for appellant.

Herbert C. Smyth, of New York City, for respondents.

WILLARD BARTLETT, C. J.

This case produces a very unfavorable impression at the outset in one respect. It was originally tried on one theory as to the cause of the explosion by which the infant plaintiff was injured . That theory was declared to be wholly untenable by the Appellate Division, and without any evidence to sustain it. Paul v. Consolidated Fireworks Co., 133 App. Div. 310,117 N. Y. Supp. 698. On the trial now under review an entirely different theory, utterly irreconcilable with the first, was presented, and this also has prevailed with the jury.

The infant plaintiff was badly injured by the explosion of a piece of fireworks, known as a geyser, while he was engaged in fastening a stick to it by driving a steel nail through the stick and into the geyser with a brass-faced hammer. The complaint alleged that, the defendant negligently disregarding its duty to provide a suitable and safe place for the plaintiff to work in, and to furnish suitable and proper materials and tools for his work, whereby a fire and explosion occurred, that plaintiff received great and serious burns and injuries. It contained nothing to indicate or suggest how the fire and explosion were caused. On the first trial expert opinion evidence was introduced to prove that it was occasioned by a spark thrown off by the impact of the brass face of the hammer against the head of the steel nail, which spark set fire to some loose powder or other inflammable composition on the table where the geyser lay. The Appellate Division having rejected this explanation of the accident a new one was advanced, and that is that the geyser was exploded by the heat due to the friction occasioned by driving the steel nail into the compact compound of which it was made up, which consisted of 18 parts of saltpeter, 4 parts of sulphur, and 6 parts of charcoal. This theory is also sought to be sustained by expert opinion evidence, of which the most that can be said is that it indicates a possibility that this may have been the cause of the explosion.

[1][2] In my opinion this evidence is too speculative to justify holding the defendant liable for negligence, in view of the uncontradicted proof that steel nails had been used for the same purpose in the same way without accident in the largest manufactories of fireworks for many years. The rule applicable to this case is that stated by Mr. Justice Woodward on the first appeal:

‘That tools and appliances which have been in use for many years and have been found to serve...