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Levy v. Kidde Manufacturing Co.

Decided: May 15, 1951.

HANS LEVY, PLAINTIFF-APPELLANT,
v.
KIDDE MANUFACTURING COMPANY, INC., DEFENDANT-RESPONDENT



McGeehan, Jayne and Wm. J. Brennan, Jr. The opinion of the court was delivered by Jayne, J.A.D.

Jayne

The controversial question engaging our consideration in the present appeal arises from the insistence of counsel for the plaintiff-appellant that the doctrine of res ipsa loquitur operated to raise an inference of the defendant's negligence, thus presenting a factual issue which should have been submitted to the jury for determination. At the conclusion of the introduction of evidence at the trial, which occurred on November 30, 1950, the judge in the instant case directed the jury to render a verdict of no cause for action. But see Rule 3:50, amended November 10, 1949. Pursuant to the direction the verdict was rendered and a judgment entered for the defendant.

In its basic relationship to the point now debated, the factual narrative derived from the evidence adduced on behalf of the plaintiff is interesting.

Sometime between the years 1940 and 1945 a merchant conducting a store in the city of Bridgeton, Cumberland County, for the sale at retail of hardware, housewares, and sporting goods, purchased from a distributor a carbonating vessel known as a "Soda King Syphon," a product manufactured by the defendant. The merchant testified that upon its receipt he unpacked and examined it, and finding that it appeared to be in "perfect condition," he placed it in a conspicuous position on one of the shelves in his store where it remained unused and uninjured until its sale with the associated package of carbon dioxide cartridges to the plaintiff on May 28, 1949.

In its external aspects the device resembles in size and shape the general appearance of a thermos bottle. It consists of two major parts. The bottom is designed to be filled with liquid. The top provides for the insertion of the charging cartridge in a cylinder located inside. The syphon is completely assembled by engaging the threads of the top and bottom parts and by turning the top downward one and one-half revolutions. Accompanying the article were the following instructions for its use:

"HOW TO OPERATE YOUR SODA KING

1 -- Unscrew head of Syphon and fill bottle to the top with cold water -- the colder the better.

2 -- Drop in four or five ice cubes. No more than five.

3 -- Unscrew cap on charge holder inside of the head of the Syphon. (See figure B.)

4 -- Place a SODA KING Super-Charger in the charge holder with small end pointing out (see figure C). (CAUTION Use only SODA KING Super-Chargers.) Then screw back cap of charge holder. Do not use force; it is not necessary to screw cap on tightly.

5 -- Screw Syphon head on the bottle snugly so that both parts come together but do not use force. Do this with bottle standing on table or sink to avoid spilling.

6 -- To puncture Super-Charger and to charge the Syphon push down charging button (marked A in figure D) with heel of hand (see figure E); or give button a tap with palm of hand. Some people find it easier to push charging ...


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