Sheing v. Remington Arms Co.

• Decision Date: 19 October 1954
• Citation: 48 Del. 591,108 A.2d 364
• Parties: , 48 Del. 591 Harry J. SHEING, Plaintiff, v. REMINGTON ARMS COMPANY, Inc., Defendant.
• Court: Delaware Superior Court

Page 364

108 A.2d 364

9 Terry 591, 48 Del. 591

Harry J. SHEING, Plaintiff, v. REMINGTON ARMS COMPANY, Inc., Defendant.

Superior Court of Delaware, New Castle County.

Oct. 19, 1954.

Henry van der Goes, of Young & Wood, Wilmington, for plaintiff.

William Prickett, Wilmington, for defendant.

RICHARDS, President Judge.

The plaintiff brought this action to recover damages for injuries which he received, as the result of the explosion of a shotgun shell, which was manufactured by the defendant, in the open breach of his shotgun.

The shell was taken from a box of shells purchased from a retail merchant. When the plaintiff put it in his shotgun and attempted to fire it the shell failed to discharge; he then broke his gun and the ejecter threw it out causing it to fall on the ground. After he picked it up and put it back in the barrel of his gun but before he could close it, while the breach was still open, the shell exploded causing his injury.

Rule 9(b) provides, that in all averments of negligence, the circumstances constituting the negligence shall be stated with particularity.

Paragraph three of count two is in the following language:

'The injuries suffered by the plaintiff as a result of the exploding of the shell, as aforesaid, were due to the negligent acts of the defendant, Remington Arms Company, Inc., in manufacturing the said shell, the exact nature of which acts is unknown to the plaintiff'.

The plaintiff contends, that it is not necessary to state the negligence of the defendant more specifically as the case is controlled by the doctrine of res ipsa loquitur.

This doctrine was first recognized in England in the case of Byrne v. Boadle, 2 H. & C. 722, 159 Eng.Rep. 299. In this case the plaintiff was injured while walking past the defendant's place of business on a public street, when a barrel of flour fell on him from a window above the street. The Court held there was sufficient evidence of negligence, to impose upon the defendant the burden of proving that the accident was not caused by his negligence.

It is not necessary to look to other jurisdictions for support of the doctrine as it has often been applied by the Court of this State. In the case of Sweeney v. Jessup & Moore Paper Co., 4 Pennewill 284, 54 A. 954, decided in 1903, one of the grounds of demurrer to the declaration was, that it does not appear by any allegation contained in the first count in what respect the defendant was negligent or careless. The Court overruled the demurrer without an opinion. Where the plaintiff relied upon the doctrine of res ipsa loquitur in the case of Wood v. Wilmington City Ry. Co., 5 Pennewill 369, 64 A. 246, 247, in charging the jury the Court said:

'Whether there be evidence of negligence in an accident must be determined by the facts of each particular case. Where an electric railway is under the control and management of a company, and the accident is of such a character as to show that it could not have happened in the ordinary course of events under reasonably careful management, it affords some evidence, in the absence of any explanation, that the accident rose from the want of care.'

In Edmanson v. Wilmington & Philadelphia Traction Co., 2 W.W.Harr. 177, 120 A. 923, 924, in overruling a demurrer, the Court said:

'The doctrine applies whenever a thing which produces an injury is shown to have been under the control and management of the defendant, and the occurrence is such as in the ordinary course of events does not happen if due care has been exercised, the fact of the injury itself will be deemed to afford sufficient evidence to support a recovery in the absence of any explanation by the defendant tending to show that the injury was not due to his want of care.'

The same principle was applied in the cases of Starr v. Starr, 5 W.W.Harr. 556, 170 A. 924; Mitchell v. Atkins, 6 W.W.Harr. 451, 178 A. 593 and Thompson v. Cooles, 7 W.W.Harr. 83, 180 A. 522.

The more recent case of Slack v. Premier-Pabst Corp., 1 Terry 97, 5 A.2d 516, after referring to the cases above mentioned, contains the following explanation of the doctrine:

'The rule, being one of evidence, of a limited and restricted scope, and not arbitrary or inexorable in its nature, is to be applied with a cautious judgment and not in a manner to work...