Marosi v. J. W. Robinson Co.

VICKERS, J. pro tem. Appeal by plaintiff from order granting a new trial.

Plaintiff-appellant filed his complaint against the defendant-respondent and the defendant J. W. Robinson Company for damages resulting from the explosion of a rose sprayer while appellant was attempting to operate it. The complaint alleged the manufacture of the sprayer by respondent, its sale to the defendant Robinson Company, the purchase of it from that company by appellant’s aunt and appellant’s injury. It also alleged that respondent so negligently manufactured the [813]sprayer that it was dangerous and likely to explode and injure anyone near it and that this was known or by the exercise of reasonable care should have been known to respondent. By its answer respondent denied negligence and dangerous condition and alleged contributory negligence by appellant.

At the close of the presentation of plaintiff’s case the trial court granted a nonsuit as to the defendant Robinson and Company. At the close of the trial the jury returned a verdict for $11,721 in favor of plaintiff against the remaining defendant, the respondent herein. Thereafter upon defendant’s motion therefor, the trial court made an order granting a new trial and filed its memorandum of opinion. In the memorandum and in the order entered in the minutes the court declared the motion was granted “solely on the ground of the insufficiency of the evidence to justify the verdict. ’ ’

Appellant attacks the order on the grounds that it is contrary to the evidence and that, since it appears from the court’s memorandum, that the court granted the motion solely because of an erroneous conception of the law of proximate cause, the order must be reversed. On neither ground can appellant prevail.

Appellant was injured while preparing to fill the sprayer with an insecticide solution at the direction of his aunt. She had used the sprayer shortly after purchasing it two and a half months before appellant’s injury and had stored it without removing the pump and rinsing and drying the tank as directed by the instructions printed on the tank. She had also used it on the day in question and had then directed the appellant to fill and use it. He testified in part as follows: That he turned the handle of the plunger to release the air pressure and then removed the plunger from inside the brass cylinder within the tank; that a few minutes later he returned and as he bent over the sprayer he noticed the cylinder was at an angle and canted; that at that moment the cylinder exploded from the tank and struck him. This cylinder was approximately 14 inches in length and 1% inches in diameter. It fitted into a circular aperture in the top of the tank there being approximately 4 one-thousandths of an inch clearance between it and the edge of the aperture. It had a rubber gasket at the top so that when the cylinder and plunger were fully inserted, and the handle of the plunger was turned to the right, this gasket would be sealed against the seat of the tank preventing the escape of air.