Tayer v. York Ice MacH. Corp. , 342 Mo. 912 ( 1938 )

ON MOTION FOR REHEARING. Morris v. E.I. Du Pont de Nemours Co., 341 Mo. 821,109 S.W.2d 1222, stressed in respondent's motion for rehearing, was not overlooked although not mentioned in the opinion.

The Morris case involved an explosive, dynamite. Due care varies with the danger involved and is proportionate thereto. The use of nitroglycerine when imperfectly compounded with other substances into hypersensitive and superpowerful dynamite exposes the user to probable and extraordinary hazards of bodily harm and the manufacturer is required to exercise almost, if not, meticulous precautions to secure substantial perfection. The first intended user of the dynamite would destroy it and its hypersensitive and superpowerful qualities remained intact from date of manufacture to date of user, when upon first being put in the usual manner to its intended use it directly inflicted injury upon Morris. The Morris case possessed certain features analogous to the Stolle case, as well as the McLeod case, mentioned in the opinion. In the instant case Tayer's employer operated the manifold for several months. Neither the "cracking" of the manifold nor the escape of ammonia gas from the crack in the manifold inflicted injury upon Tayer. These and other factors readily distinguish the cases.

Plaintiff may have a cause of action against decedent's former employer, embracing liability for giving a negligent order. Plaintiff, however, is not suing the master. This, with reference to proximate cause under the facts before us. A reading at the pages indicated of Smith v. Twin State Gas El. Co.,83 N.H. 439, 449, 450, 144 A. 57, 62 (8, 9), 61 A.L.R. 1015, 1025 (stressed in respondent's motion), a case wherein liability hinged upon a hidden and exceptional danger known to and under the control of defendant and of which decedent was entitled to warning, discloses that is not this case. The Missouri cases sufficiently cover the law upon the issue.

The motion for rehearing is overruled.