Crist v. Art Metal Works , 243 N.Y.S. 496 ( 1930 )

Sherman, J.

Plaintiffs appeal from orders granting defendant’s motion to dismiss, in advance of trial, the complaint in each case, the first action being for personal injuries sustained by the infant plaintiff, and the second action, by his father for loss of services and medical expense, on the ground that the complaints (which are identical in averments to fix liability) do not set forth facts sufficient to constitute a cause of action.

Defendant is a manufacturer of toy revolvers and “ advertised the same for use, especially by children and infants of tender years as a means and source of fun, play, joy and amusement.” The complaint sets forth fully the advertising matter circulated by defendant, which asserted in bold type that this children s toy was “ absolutely harmless,” and employed other phrases, indicating that under no circumstances could harm befall the infant user. The appeal was to children to obtain and use it; they or their parents, for them, were the intended purchasers. The complaint describes the mechanical construction and operation of this revolver, and further alleges that defendant was negligent and careless in its advertising of the revolvers, in the manner set forth, and in failing adequately to warn users against possible dangers in its use and thus breached its duty to the public and to those who might be induced to place it in the hands of infants to their danger. The complaint charges that the pistol was advertised and distributed particularly for use during the Christmas holidays.

The infant plaintiff was seriously injured while dressed during the Christinas season in a Santa Claus costume when the flame emanating from the barrel of the revolver ignited the material used as Santa Claus’ whiskers and the “ soft cotton material ” forming a part of that costume.

The complaint here is sustained by the decision in Henry v. Crook (202 App. Div. 19), where the court (in an action in which both the immediate vendor and the advertising manufacturer were defendants) stated in reference to an advertisement regarding a toy known as “ sparklers ” through the use of which a child was burnt (p. 21): “ The statement that they may be used indoors, where are usually rugs and carpets and other inflammable materials during the holiday time, would give one the impression that a fire could not be ignited by their use. The clothing of children is often sheer and easily inflammable.”

In that case, however, the advertisement contained some warning, viz., “ Do not touch glowing wire.” That article was not proclaimed by its' manufacturer to be “ absolutely harmless ” as here. The court there held that the warning was not sufficient in view of the circumstance that the articles were intended to be used by children who were entitled to be warned of danger. The advertising matter, here, contained no warning whatever; on the contrary, the defendant’s advertisement was designed to allay all fear of possible injurious consequence to a child user. Where a manufacturer markets an article with such a sweeping and unqualified representation that a child could not be hurt by it, an infant user actually damaged by its use is entitled to show the circumstances under which the pistol was purchased and to prove how the injuiy resulted and may not be summarily deprived of a trial upon which to make such proof.

The importance of the circumstance that this pistol was made by defendant to be sold for use, not by the general public, but by a class, viz., infants of tender years, is not to be overlooked. Other cases cited by appellant refer to articles which primarily were intended to be used by adults. In many instances when so used they were not dangerous, and the court held that there could be no recovery against the manufacturer unless the otherwise harmless article was such as would be expected to become capable of inflicting injury when negligently constructed.

For instance, the large coffee urn, in Statler v. Ray Manufacturing Co. (195 N. Y. 478), or the bottle of aerated water, in Torgesen v. Schultz (192 N. Y. 156), were articles of such character that they were liable to become a source of danger if not properly constructed and recoveries against the manufacturer were allowed. -

But no cause of action existed for negligence against the manufacturer and vendor where through the breaking of a defective bed after long use, plaintiff was injured. It was not a likely source of danger in any event. (Field v. Empire Case Goods Co., 179 App. Div. 253.)

The cases bearing upon the nature and extent of the liability of the manufacturer to the ultimate purchaser for negligence are discussed and analyzed in MacPherson v. Buick Motor Co. (217 N. Y. 382). Underlying the manufacturer’s liability is the danger reasonably to be foreseen from the intended use of the article. The advertising matter accompanying it may induce the use in such manner as to make an otherwise harmless article a source of danger. A product designed to be used by adults who may be expected to exercise care may not be dangerous, but when intended to be placed in the hands of inexperienced children who may seek to enlarge their knowledge by experimentation of various and sometimes unsuspected character, it may be a source of peiil, and the danger would be increased if the manufacturer represented that under no circumstances could the infant user be harmed. The manufacturer must be deemed to have known that children during the Christmas season, in portrayals of Santa Claus or at other times in the production of plays or pageants, or in attendance at gatherings, would probably be garbed in inflammable material and that to place a pistol of this character in the hands of a child might result in damage.

The present appears to. be not the only instance where an infant has been injured while using a like revolver made by defendant, for a similar toy pistol was discharged by an infant and the sparks caused a mixture of gasoline vapor and oxygen to ignite. (Miller v. Sears, Roebuck & Co., 250 Ill. App. 340.) Respondent here relies largely upon the decision in that case (Miller v. Sears, Roebuck & Co., supra), in which the court said (p. 346): “ We are of the opinion that upon the record the instruction of the trial court ■ that the jury should return a verdict of not guilty, was proper, and the judgment thereon will not be disturbed.” That conclusion, however, rested upon the particular circumstances there proven at trial. That plaintiff was at least afforded his day in court and given an opportunity to present his evidence.

In order to sustain the order and judgment below, this court would be required to hold that no matter what proof might be introduced upon trial as to the acquisition of the pistol and the circumstances of this accident, defendant is immune from damages. We cannot say as a matter of law, accepting the allegations of the complaint as true, that defendant discharged its full duty and that no question exists for the jury to pass upon. A jury may or may not find upon proper proof that the pistol used by the infant plaintiff which ignited his costume was harmless. Whether there was contributory negligence is likewise a jury question.

The judgments and orders appealed from should be reversed, with costs, and defendant’s motion for judgment on the pleadings denied in each action, with ten dollars costs.

McAvoy and O’Malley, JJ., concur; Merrell and Martin, JJ., dissent.