Thompson v. National Fireworks Co.

Morton, J. We assume in the plaintiff’s favor that the evidence warranted a finding that her intestate was in the exercise of due care. We also take it for granted that the evidence warranted a finding that the defendant did not instruct him as fully as it should have done, and that, therefore, he did not assume the risk arising from the danger of an explosion. But it seems to us that, as the case was left, the cause of the explosion was •wholly a matter of conjecture, and that there was no evidence warranting a finding that it was due to a defect in the machine which could and should have been discovered by the exercise of proper care on the part of the defendant. There was nothing [329] to show that the machine was not inspected by the defendant or that the duty of inspection was performed negligently by it. On the contrary it appears that this machine with the others was inspected several times daily to see whether it was working right, and whether the plunger was running true. The two boys who worked at the machines next to the plaintiff’s intestate, on the one side and the other, and who were called by the plaintiff, testified that “ Thompson’s machine was running nicely that day, and that there was no complaint from him that day.” If this might seem to imply that he had complained about the running of the machine before, there was no evidence that he had done so, or that the machine had been out of order. The accident occurred about half past five o’clock in the afternoon, thus corroborating the statement of the boys that the “ machine was running nicely that day.” Clark, the manager and superintendent, also called by the plaintiff, testified, without contradiction, that the machine had been running well for three weeks, and that he had never known it to be out of order. The facts that the machine was a complicated one and liable perhaps to get out of order and that the material used to fill the firecrackers was of an explosive nature, furnish no evidence that the explosion was due to a defect in the machine, or to the want of proper care on the part of the defendant. It is not a case where the doctrine of res ipsa loquitur applies. It cannot be said that the circumstances were such as to afford just ground for a reasonable inference that the accident would not have occurred except for a defect in the machine or the want of proper care on the part of the defendant. As already observed, it is impossible to say what caused the accident and no inference of negligence can, therefore, be drawn. The explosive nature of the compound rendered an accident peculiarly liable to happen even with the exercise of the highest degree of care on the part of the defendant, and there should be something fairly warranting an inference that it would not have occurred except for the defendant’s negligence. We fail to find any such evidence. Exceptions sustained.