DOUGHNUT MACH. CORPORATION v. BIBBEY, 65 F.2d 634

ANDERSON, Circuit Judge. This is an appeal, with excessively numerous assignments of error, from a judgment in a personal injury ease, against a New York corporation by a citizen of Massachusetts. The ease has been tried twice, each time with a verdict for the plaintiff. The first verdict was set aside because the damages were excessive. The second (alternative) verdict in October, 1931, was for $3,-000. The plaintiff moved to set this aside because of inadequate damages; and the de--f endant, because it was against the law.

In a careful memorandum dated April 22, 1932, the court overruled both motions and entered judgment on the verdict. The controlling facts are in narrow compass. 'In November, 1928, the defendant leased to the plaintiff and her sister a doughnut making machine.' This machine was set up in Cliftondale about December 28, 1928, under the instructions of an employee of the defendant.

The machine, electrically heated and operated, consisted of a kettle containing the fat for frying; a can, opening into the kettle, with devices arranged so that successive units of dough fell into the hot fat between the ribs of a rotating spider; devices for rotating the spider and for turning over the doughnut when halfway round; and an ejector which comes up through the fat between the ribs of the spider, to throw out the completely cooked doughnuts. •Prom the first, some of the doughnuts were not cooked properly.

As the result of complaints by the lessees, repairs and adjustments were two or more times made in the machine by the defendant’s agents — and by no one else. Bnt on the morning of February 5, 1929, while the plaintiff was standing in front, putting the fried doughnuts into a basket with an iron handling rod, the machine jammed, causing a broken part of the spider and the ejector to slap into the hot fat, splashing the grease out of the machine into the face of the plaintiff and serionsly burning her. The jury found specially that the cause of the accident was a defective machine.

We need not consider whether there was liability to third persons. Huset v. J. I. Case Machine Co. (C. C. A.) 120 F. 865, 61 L. R. A. 303, and cases cited; Farley v. Tower Co., 271 Mass. 230, 171 N. E. 639, and cases cited; McPherson 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. For the plaintiff was not a third person. The machine was leased by the defendant directly to the plaintiff and her sister.

Defendant’s claim that the accident was caused by the plaintiff herself inserting the iron rod into the machine was negatived by her testimony to the contrary — that the jury were fully justified in believing. This was a pure question of fact for the jury. While the machine may not have been inherently dangerous, it was imminently dangerous, when so made as to jam and throw hot fat into the face of the operator.

We hold that there was a duty on the manufacturer of a machine not to put it out, negligently, in such a condition that it was likely to go wrong and endanger the buyer or lessee, operating the machine exactly as it was intended to be operated.

Defendant relies in one of its assignments of error on its exception to a refusal by the trial judge to rule that “The plaintiff cannot recover upon the doctrine of res ipsa loquitur.” We do not think there was error in refusing so to rule, since the case did not disclose facts warranting the application of that doetrine; nor do we think the judge instructed the jury that this rule was applicable to the facts in the case.

Under the res ipsa loquitur doctrine, it is sufficient to make out a prima facie case for a plaintiff to prove that he was not at fault, if that burden is on the plaintiff, and that the machine or instrument causing the injury was in the possession or under the control of the defendant, and that, under ordinary conditions, the accident would not have happened without fault on the part of the defendant. San Juan Light & Transit Co. v. Requena, 224 U. S. 89, 32 S. Ct. 399, 56 L. Ed. 680; Sweeney v. Erving, 228 U. S. 233, 33 S. Ct. 416, 57 L. Ed. 815, Ann. Cas. 1914D, 905; Graham v. Badger, 164 Mass. 42, 47, 41 N.

E. 61. These facts proven, the burden of overcoming the presumption of negligence on the part of the defendant which follows is on the defendant. Gleeson v. Virginia Midland R. R. Co., 140 U. S. 435, 444, 11 S. Ct. 859, 35 L. Ed. 458; Chesapeake & Ohio Ry. Co. v. Smith (C. C. A.) 42 F.(2d) 111; May Department Stores Co. v. Bell (C. C. A.) 61 F.(2d) 830; 5 Wig-more on Evidence, §§ 2483-2498. In other words, the plaintiff, by proving these facts, makes out a ease sufficient to be submitted to the jury.

The trial judge in this ease — having at the outset told the jury that the burden of proving the defendant’s negligence was on the plaintiff — while he instructed them that they might consider the accident as bearing on the question of negligence, repeatedly impressed on the jury that, before they could do so, all interference by the plaintiff or her agents that might cause the accident, must be eliminated.

On this point he instructed them as follows: “The accident is not to be considered as evidence of negligence unless, in the first place, all outside interference with and changes to that machine are eliminated.” “In order to say that the accident itself is evidence of negligence, you must first eliminate all outside changes in the machine made by other persons than the manufacturer or. agent. You must next say that the machine, if it was in proper condition and properly serviced, would have lasted longer than the six weeks in good running condition.

Lastly, you must say that no outside interference with the operation of the machine, like the iron rod, led to the accident.” (Italics supplied.) “If you resolve all those questions in favor of the plaintiff, you still have the underlying question whether the accident indicates a lack of reasonable care on the part of the manufacturer.” This is not the rule of res ipsa loquitur.

The fair inference the jury must have drawn from the charge was that the burden of proof of negligence by the defendant was on the plaintiff; that the jury must be satisfied that the plaintiff did not herself cause the accident; that she must eliminate all interference with the machine or changes in it by herself or her agent; that, having established that to the satisfaction of the jury, and that the machine did not operate properly almost from the time it was set up, and that the only change or work done on it was by an agent of the defendant, the jury might then consider the accident occurring within six weeks after it was set up in the plaintiff’s shop as bearing on the question of whether there was a defect in the machine when delivered, and as presenting some evidence of negligence on the part of the defendant.

There is nothing in these instructions implying that, under the circumstances proven in this case, the accident alone was evidence of negligence on the part of the defendant, and that the burden of explaining that it was not due to defendant’s negligence was on the defendant.

The evidence, including that of an expert witness for the plaintiff, warranted the jury in finding that almost from the first the operation of the machine indicated a defect therein, which the defendant’s agent failed adequately to remedy, and that the accident, if the jury believed the plaintiff’s testimony, could have happened only through a faulty adjustment or assembling of the so-called ejector; this the jury, from its special finding, evidently believed must have occurred at the factory.

The defendant’s contention that its warranty absolved it from liability for the injury done by its negligently defective machine cannot be sustained. It requires clear and explicit language to absolve a person from liability for his own neglect. Jennings v. Grand Trunk Ry., 127 N. Y. 438, 450, 28 N. E. 394. Such contracts, when made by a common carrier, are void as against public policy — as putting a premium on faulty conduct. Hart v. Pa. R. R., 112 U. S. 331, 338, 5 S. Ct. 151, 28 L. Ed. 717; Hartford Insurance Co. v. Chicago, etc., R. R., 175 U. S. 91, 98, 20 S. Ct. 33, 44 L. Ed. 84; Santa Fe R. R. v.

Grant Brothers, 228 U. S. 177, 184, 33 S. Ct. 474, 57 L. Ed. 787; Cooley on Toils, 687; Piper v. B. & M. R. R., 75 N. H. 435, 437, et seq., 75 A. 1041, and cases cited; Bigelow, Kennard & Co. v. Boston, 254 Mass. 53, 56, 149 N. E. 540, 41 A. L. R. 1355; New York Central R. R. v. Culkeen & Sons, 249 Mass. 71, 75, 76, 144 N. E. 96; Twin City Co. v. Harding Glass Co., 283 U. S. 353, 357, 51 S. Ct. 476, 75 L. Ed. 1112, 83 A. L. R. 1168, and cases cited.

This warranty relates to defects in material and workmanship, and lessor’s undertaking to make good such defects at its factory, followed by this general statement: “This warranty being expressly in lieu of all other warranties, expressed or implied, and of all other obligations or liabilities on our part.” This language falls far short of being a plain agreement that the lessees should assume liability for personal injury caused by the defective machine’s splashing hot grease upon the operator.

Such a meaning is neither within the fair scope of the language used nor was it in the mind of either party to the lease. Quackenbush v. Ford Motor Co., 167 App. Div. 433, 153 N. Y. S. 131; Clarke v. Ames, 267 Mass. 44, 165 N. E. 696; compare Commissioner of Insurance v. Bristol Mutual Ins. Co., 279 Mass. 325, 181 N. E. 208. We find no other assignment of error calling for discussion. The judgment of the District Court is affirmed, with costs to the appellee.