Smith v. SS Kresge Co.

• Decision Date: 18 September 1935
• Docket Number: No. 10255.,10255.
• Citation: 79 F.2d 361
• Parties: SMITH v. S. S. KRESGE CO., Inc.
• Court: U.S. Court of Appeals — Eighth Circuit

79 F.2d 361 (1935)

SMITH v. S. S. KRESGE CO., Inc.^*

No. 10255.

Circuit Court of Appeals, Eighth Circuit.

September 18, 1935.

William R. Schneider, of St. Louis, Mo. (Meyer E. Aronoff and Simon Fisher, both of St. Louis, Mo., on the brief), for appellant.

Wayne Ely, of St. Louis, Mo. (Tom Ely, Jr., of St. Louis, Mo., on the brief), for appellee.

Before STONE and FARIS, Circuit Judges, and RAGON, District Judge.

RAGON, District Judge.

Appellant, plaintiff below, sued appellee for damages resulting from personal injury alleged to have been received by her when certain water waving combs, bought from appellee, ignited and exploded while she was drying her hair with artificial heat, by inclining her head over the open door of the gas oven in her kitchen. The alleged injury occurred on April 22, 1932. She had purchased a half dozen of these combs for use in waving her hair from the appellee in September, 1929. A month later she purchased four or five additional combs. On the day the injury occurred she had dampened her hair, placed the combs in position therein, and then turned on the flame in the broiler of her gas oven. She closed the broiler door of the gas oven and opened the door above it which led to the roaster and in which there was no flame. She bent over the door of this roaster and exposed her hair with the combs in it to the heat flowing from the oven when the combs ignited and exploded, setting fire to her hair and burning her severely.

The combs were composed of 7.30 per cent. camphor, 41 per cent. nitrocellulose, and a filler of casein or some other compound like it. The composition forms the commercial substance which is known to the trade as celluloid and is highly inflammable. Chemists testified that the combs in question would ignite and burn when exposed to a flame, or would ignite and burn when exposed to a temperature of 366 to 370 degrees Fahrenheit without flame. According to the chemist, who made tests of the oven in front of which the appellant was standing and over which she was leaning when the combs ignited, it was found that the heat at a point one and one-half inches out from the top of the oven was 375 degrees Fahrenheit.

Appellant alleges, in substance, that she received her injuries as a result of the appellee's negligence in failing to warn her of the inherently dangerous character of the combs when used in the ordinary, customary, and well-known manner in proximity to heat.

The appellant to sustain her action testified that she had purchased combs in Kresge's store before and she knew the exact counter where the combs were to be had, because she did practically all of her shopping at the store. She knew from the appearance of the combs that they were what she wanted and she did not ask the saleslady anything about them, nor did the saleslady offer her any information concerning the combs. She did not remember whether the saleslady took the combs off a card or not. A question and answer from the record succinctly states the circumstances pertaining to the sale.

"Q. You said, `I want these particular combs'? A. Yes, sir; and she (saleslady) said nothing at all to me and I did not ask her anything. I did not ask her whether they were water waving combs or how they were to be used, or what they were made of or anything of that sort. I don't know whether they were on a card, but I did not take them home on a card, and I don't know if they were on a card before I picked them out."

While many questions and answers touching the sale of the combs are disclosed by the record, the one above quoted incorporates the substance of the appellant's testimony important to this decision, and which was the only testimony introduced throwing any light upon what transpired when the sale was made.

At the conclusion of appellant's evidence, the appellee, without offering any evidence, moved for a directed verdict. Thereupon by direction of the court the jury found for the appellee, from which verdict appellant prosecutes this appeal.

In directing the verdict the court made a statement to the jury giving as his reasons for the binding instruction that there was no substantial evidence upon which the jury might base a conclusion that the appellant was given no warning about the inflammable and explosive character of the combs. Prior to the court's making this statement, appellant had asked leave of the court to dismiss her suit. But after the court had stated his reason for directing the verdict, counsel for appellant, evidently believing the trial court was irrevocably bound by the statement, withdrew the request and stood upon the record.

The appellant contends that when a directed verdict is requested by the defendant the trial court should draw from the evidence adduced the most favorable inferences in favor of plaintiff's right to recover. This rule is so fundamental and so well settled by the authorities in favor of the appellant that citations are unnecessary. It is obvious that this evidence and all reasonable inferences to be drawn therefrom is susceptible of but one construction and that is, the appellant was given no warning as to the inflammable and explosive character of these combs. The testimony of the plaintiff is that she was given no such warning by the saleslady from whom she made the purchase, and this statement is undisputed. Neither is there any circumstance connected...