Gobin v. Avenue Food Mart

DOOLING, J.

This appeal from a judgment for defendants following a jury verdict is presented on a partial reporter’s transcript under Rules on Appeal, rule 4(b). The only point to be raised by appellants on appeal designated in the notice to prepare transcript is: “failure of the court to instruct the jury on res ipsa loquitur.”

[346]

The action was by a minor, who at the time of the injury was 6 years of age, for damages for injury to his eye in which his mother joined seeking to recover medical expenses incurred as a result thereof. The boy received the injury when, after a plastic dart broke in being fired from a toy gun so that only the upper part of the dart was ejected, the boy looked into the barrel of the gun to discover what had become of the other fragment of the dart and it was ejected against one of his eyes.

The gun was purchased from defendant Avenue,Food Mart on Friday, February 11, at about 6:30 p. m. The injury occurred at about 5:30 p. m. the following evening. The gun and darts when purchased were fastened to a piece of cardboard enclosed in a plastic bag which was stapled together at the top. Defendant Knickerbocker Plastic Company is the manufacturer of the gun and defendant Pacific Toy House is the wholesaler and distributor from which defendant Avenue Food Mart purchased it. The complaint relied both upon breach of warranty and negligence. Obviously only the negligence counts are involved in this appeal.

The shaft of the dart was composed of a plastic material and each dart had on its tip a rubber suction cup. The gun contained a spring and was loaded by pressing the shaft down the barrel and against the spring until the spring automatically locked. It was discharged by releasing the spring with a trigger.

Evidence was given by an expert who had examined similar plastic darts manufactured by defendant Knickerbocker Plastic Company, including one of the darts which came with the gun purchased by the plaintiff. He found void or hollow parts in the darts which made them more readily breakable and by experiments in shooting them against other objects found a chipping of the darts which indicated that they were brittle.

The proposed instruction on res ipsa loquitur made no distinction among the defendants, applying equally to all three. The respondents argue that under the facts of this ease there is nothing in the evidence to support the giving of the res ipsa instruction as against the seller Avenue Food Mart or the wholesaler Pacific Toy House. We have concluded that this argument is sound. There is nothing in the evidence to indicate that after the gun and darts left the manufacturer attached to a piece of cardboard and enclosed