
    The White Sewing Machine Co. v. Feisel, a Minor.
    
      (Decided November 28, 1927.)
    
      Messrs. Fraser, Hiett, Wall & Effler, for plaintiff in error.
    
      Mr. W. W. Campbell and Mr. Harvey H. Crist, for defendant in error.
   Williams, J.

The plaintiff, Helen Rae Feisel, a minor, by Anthony F. Feisel, her next friend, brought an action in the court of common pleas against the defendant, the White Sewing Machine Company, for damages sustained through the alleged defective insulation of • a cord attachment, which, with an electric sewing machine, was sold and delivered by defendant to the plaintiff’s mother. Upon trial in the court below, there was a verdict and judgment in favor of the plaintiff for $10,000, and this proceeding in error is brought to reverse that judgment.

The evidence adduced on behalf of the plaintiff tends to show the following facts: On or about September 3, 1926, the mother of the plaintiff purchased frem the defendant an electric sewing machine, which was delivered to'the home, where lived the father and mother of the plaintiff, the brother of the plaintiff, who was about three years old, and the plaintiff, who was about one year old. There was, sold and delivered with the electric sewing machine proper an insulated cord about ten feet in length, on one end of which was a plug so constructed as to fit into an electric wall socket, and on the other end a plug so made that it could be attached to the sewing machine, the purpose of the cord being to furnish electricity as power to run the electric motor. At the time of sale and delivery, the two children belonging in the family were in the room. While the agent wrote out the contract for the mother to sign, he pulled loose the end of the cord attached to the machine, and allowed it to hang over the machine; but it remained attached at the other end to the wall socket. After sewing upon the machine a half or three-quarters of an hour after the agent left, the mother closed it up. She next opened it a week later, or about September 10th, and, after attaching the cord to the wall socket, and to the machine, was about to sew, when she discovered that her baby was restless. She then pulled off the cord where attached to the machine, and let it hang over the machine still attached to the wall socket, as the agent had done on his previous visit, and thereupon undertook to comfort the child and do some hand sewing. A moment later the child gurgled. As the mother picked her up, the end of the cord, on which was the socket which fitted on the machine, fell from her mouth. At that time the rubber cap of the attachment slid down an inch or an inch and a half. The child was badly burned about the' mouth and inside the mouth. She was taken to a physician, and then to the hospital. A day or two later the mother took the cord to the office of the defendant, and thereafter she took it to the office of the attorneys, where it was placed in a safe and kept until the trial. When produced at the trial, the threads on the cap or attachment which made the connection with the machine were so far destroyed that they would no longer hold the cap in place at all, but permitted it to slide down so as to expose the bare wires or copper connections for about half an inch.,

Should the court below have' directed a verdict in favor of the defendant?

It is a general rule of law that a manufacturer or seller is not liable to third persons, with whom he has no contractual relations, for negligence in the manufacture or sale of an article. 24 ft. C. L., 512, Section 804, and cases cited. The general rule is grounded on the leading case of Winterbottom v. Wright, 10 M. & W., 109, 152 Eng. Rep. R., 402. This case has been frequently followed in the United States. Huset v. Case Threshing Machine Co., (C. C. A.) 120 F., 865, 868. To this rule, however, many courts have recognized that exceptions exist. Huset v. Case Threshing Machine Co., supra; Hruska v. Parke, Davis & Co., (C. C. A.), 6 F. (2nd), 536, 538; Heckel v. Ford Motor Co., 100 N. J. Law, 385, 128 A., 242, 39 A. L. R., 989; MacPherson v. Buick Motor Co., 217 N. Y., 382, 111 N. E., 1050, L. R. A., 1916F, 696, Ann. Cas., 1916C, 440; Johnson v. Cadillac Motor Car Co., (C. C. A.), 261 F., 878, 8 A. L. R., 1023; 42 C. J., 827.

The manufacturer of an appliance, which, if defective in construction, will become inherently or imminently dangerous when used for the purpose for which it was intended, owes a duty to the public, irrespective of contractual relations, and it has been held in many cases that he will be liable to third persons for an injury directly caused by negligence in failing to make reasonable inspection of such defective appliance, where the injury was sustained while the appliance was being used for the purpose intended, and where the danger might reasonably have been foreseen by the manufacturer. Mazetti v. Armour & Co., 75 Wash., 622, 159 P., 633, 48 L. R. A. (N. S.), 213, and footnote at page 216, Ann. Cas., 1915C, 140; 13 A. L. R., 1183, and cases cited; 17 A. L. R., 683, and cases cited; 39 A. L. R., 993, and cases cited; 41 A. L. R., 35, and cases cited; 24 R. C. L., pp. 512 and 513.

An examination of the cases cited will disclose that, while the rule was originally applied where the article of sale was “inherently” or “imminently” dangerous, it is how commonly invoked in cases where the dangerous character of the thing is made imminent by defective construction, which is the result of negligence, or would be discoverable upon exercise of ordinary care in making a reasonable inspection. ,

The rule applicable to the instant case, and sustained by both the current and weight of authority, is stated by Cardozo, J., in the case of MacPherson v. Buick Motor Car Co., supra:

“We hold, then, that the principle of Thomas v. Winchester [6 N. Y. 397], is not limited to poisons, explosives, and things of like nature, to things which in their normal operation are implements of destruction. If the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger. Its. nature gives warning of the consequences to be expected. If to the element of danger there is added knowledge that the thing will be nsed by persons other than the purchaser, and nsed without new tests, then, irrespective of. contract, the manufacturer of this thing of danger is under a duty to make it carefully. That is as far as we are required to go for the decision of this case. There must be knowledge of a danger, not merely possible, but probable. It is possible to use almost anything in a way that will make it dangerous if defective. That is not enough to charge the manufacturer with a duty independent of his contract. Whether a given thing is dangerous may be sometimes a question for the court and sometimes a question for the jury. There must also be knowledge that in the usual course of events the danger will be shared by others than the buyer. Such knowledge may often be inferred from the nature of the transaction. But it is possible that even knowledge of the danger and of the use will not always be enough. The proximity or remoteness of the relation is a factor to be considered. We are dealing now with the liability of the manufacturer of the finished product, who puts it on the market to be used without inspection by his customers. If he is negligent, where danger is to be foreseen, a liability will follow. We are not required at this time to* say that it is legitimate to go back of the manufacturer of the finished product and hold the manufacturers of the component parts. To make their negligence a cause of imminent danger, an independent cause must often intervene; the manufacturer of the finished product must also fail in his duty of inspection. It may be that in those circumstances the negligence of the earlier members of the series is too remote to constitute, as to the ultimate user, an actionable wrong (Beven on Negligence (3d Ed.), 50, 51, 54; Wharton on Negligence (2d Ed.), Section 134; Leeds v. N. Y. Tel. Co., 178 N. Y., 118 [70 N. E., 219]; Sweet v. Perkins, 196 N. Y., 482 [90 N. E., 50]; Hayes v. Hyde Park, 153 Mass., 514, 616 [27 N. E., 522, 12 L. R. A., 249]). We leave that question open. We shall have to deal with it when it arises. The difficulty which it suggests is not pr'esen't in this case. There is here no break in the chain of cause and effect. In such circumstances, the presence of a known danger, attendant upon a known use, makes vigilance a duty. We have put aside the notion that the duty to safeguard life and limb, when the consequences of negligence may be foreseen, grows out of contract and nothing else. We have put the source of the obligation where it ought to be. We have put its source in the law.”

In the case of Cadillac Motor Car Co. v. Johnson, (C. C. A.), 221 F., 801, L. R. A., 1915E, 287, Ann. Cas., 1917E, 581, a different rule was laid down. The cause was retried and the judgment came before the same court for review. Johnson v. Cadillac Motor Car Co., supra. In the meantime the decision in MacPherson v. Buick Motor Car Co., supra, came out, and the reasoning of the able and learned judge in that case was found so compelling that on such second hearing an opposite conclusion was reached.

Electricity is a highly dangerous element, and the frequent use of electric appliances in the home of modern times has resulted in many injuries and deaths from electricity. A tool, machine, or apparatus for use in the home, which employs electricity, is such a dangerous instrumentality as would require the manufacturer or seller to use ordinary care in its manufacture and inspection, to the end that the article may be so insulated as to be reasonably safe for use. Danger to members of the family from a defective appliance of this character is- one to be foreseen by the manufacturer who sells it to one of the members of the family. The defendant was the manufacturer of the electric sewing machine. As to the appliance, it purchased the plugs and cord from other manufacturers, cut the cord, and made the completed attachments. In connecting the alleged defective attachment to the cord it would be required, in order , to complete it, to screw up the cap on the attachment. To all intents and purposes, the defendant was the manufacturer of the attachment as well as the sewing machine. The mere fact that it purchased the plugs from a reputable manufacturer would not relieve it from the duty to make reasonable tests and inspection. MacPherson v. Buick Motor Car Co., supra. The machine was sold for the express purpose of being used in the home, and with knowledge that there were children of tender years there, and the danger should have been foreseen. It further appears from the evidence of plaintiff that no instructions were given by the company with reference to the use of the appliance, nor any warning given as to its dangerous nature. A duty rested upon the manufacturer toward the members of the family residing in the home, irrespective of contract.

It is contended, however, that in the instant case the apparatus was not being used at the time for the purpose intended. A sewing machine in a private home must necessarily remain idle a large part of the time'. It is true that at the time the injuries were sustained the machine itself was not in operation; but it would be too narrow a construction to say that there would be no liability merely because at the time of the .injury the machine was not being used for purposes of sewing. In fact, the cord attachment was charged with electricity, and, as its only purpose was to conduct electricity, it was performing the only function it could perform. It was being used for the purpose intended.

It is also contended that the negligence of the sewing machine company, if any there was, could not have been the proximate cause of the injury. The evidence of the plaintiff tends to show that the mother had no knowledge of any defect in the appliance ; that at the time the injuries were sustained she had placed it in a position similar to that in which the agent of the defendant who sold it to her had himself placed it when he ceased to operate the machine. Prom this evidence the jury may well have found that the mother was not guilty of any negligence whatever, and that the negligence of the defendant, in the failure to properly inspect the appliance, was the sole and proximate cause of the injury sustained. But, even though the mother herself was guilty of negligence in leaving the cord where she did, we think the jury may well have found that the negligence of the defendant and the negligence of the mother, concurrently operating together, were the direct and proximate cause of the injury. The jury might also well have found that the injury was the proximate result of the negligence of the defendant in failing to protect the wire where it is joined to the plug by some further insulation of the wire other than the cap itself, which might easily become unscrewed, if not defective.

It is maintained by plaintiff in error, defendant below, that the verdict is manifestly against the weight of the evidence. Defendant below offered the testimony of three of its employees to show that, when the mother took the cord attachment in question to the defendant’s office, the cap would remain screwed on. This fact, if true, would not be at all conclusive. The chief source of danger in the appliance may have consisted that just enough thread was left at that time, and at the time of delivery, to hold the cap in place temporarily, but not permanently. . If so, the defect would have been disclosed by inspection. At any rate, the fact as to whether the thread would hold at all was in dispute, and we cannot say the verdict is manifestly against the weight of the evidence.

It is also contended that the verdict and judgment of $10,000 is excessive. The injured child is a little girl. She was about one year of age at the time of the injuries, and had an expectancy of life of about 50 years. The corner of the mouth was badly burned, and the -injury is permanent, not alone as to the scar in the corner of the mouth, as there is also a bunch or protuberance on the inside of the cheek. The corner of the mouth is somewhat closed up by the scar, so that the opening of the mouth that remains is somewhat to one side. Under these circumstances, we feel that this court ought not to disturb the verdict upon the ground that it is excessive.

We find no error in the record to the prejudice of the plaintiff in error, and the judgment will therefore be affirmed.

Judgment affirmed. '

Richards, J., concurs.

Lloyd, J., concurs in judgment.  