Brief in Opposition to Petition for a Writ of Certiorari — Stief v. J. A. Sexauer Manufacturing Co.

Supreme Court brief1967

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AUG 24 1967

In THE

| | | SHIN F, DAVIS, CLERK

Supreme Court of the United-Siates

Octroser. Term, 1967

No. 455

Crayton H. Stier,

Petitioner,

J. A. Sexaver MANUFACTURING Co., Inc.

and

Diamonp ALKALI Company, |

| Respondents..

——

BRIEF OF RESPONDENT J. A. SEXAUER. MANUFAC-

TURING CO., INC. IN OPPOSITION TO PETITION FOR |

A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

N oO

_ Benzamin H. Srrr, ©’

Counsel for Respondent,

J. A. Sexauer Manufacturing Co. » Inc.,

233 Broadway,

New York, N. Y. 10007 ‘

¢.

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, E a .

—————————— :

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Ma POE REPL IAAL ORATION ce Om Rep me pt , ” =e . / coer at

TABLE OF CONTENTS

Pte PAGE

PEE: viv ccnicdcaresdetouddeaaee axendanes e

Questions Presented sakes Soe eccasevcees edb daad die 3

Statement of the Case ............ceceeees eececnbe 4

—

Point I—Assuming the accident happened as claimed,

i the courts below correctly that there was

ae a issue as to negligent deficiencies in labelling _#

The alleged failure to warn against possible ex-

’ plosions. (Petition, p. Eb)... -ccccccccccoce st

The claim that the label was lila in its

statement that there was no disguised per-

fumes, no dangerous bubbling adulterants, —

causing injurious spray, explosive gases and

harmful fumes. (Petition, p. 11) otiakedesded 14

The claim that the label was misleading, be-

eause the word ‘‘safe’’ was used. (Petition; |

EE Os nn kek abide sh cakuninansaasiedas 15

- The claim of negligence in labelling | because the

words ‘‘lye’’—‘‘or caustic soda’’ were not

used. (Petition, p. 10) ...... treehtay. vis 16.

The claim that there was no warning of the dan-

ger of splattering. (Petition, p.11) ........ 18

Point II—The authorities relied on by petitioner... 19 -

ii - TABLE OF CONTENTS

PAGE

Pornt I]]—There was no competent proof that the

accident happened as claimed ................. 20

‘The necessary factual premise ‘for the — | .

by petitioner’s expert was not established . 20 .

There was insufficient factual data for Dr. Wil- ;

lard’s opinion ......... eeuseaveesepeeuwesen 23

‘Por IV—The physical facts demonstrate that there |

was no accident caused by hydrogen as claimed... 26 —

Reasons for Denying the Writ ............. venedee: oa

Conclusion esiaceneterite a eeseseses * ae

~*~

ve.

TABLE OF. Cases

tesniene v. N.Y.C. Housing Authority, 12 N. Y.

SE EE Wiucebandsberceededsaqesteereteces . 12.

Bish v. Empl ers Liability Assurance Corp. (5th

_ . Cir.), 236 Fed. 2d 62, 69 EUneaceevensecbuiaesees ll

Boyd v. American Can Company, 249 A. D. 644, affd.

SOO Wee Be ON dec deesendenevcceccaceceasaceedoc 11

Byrd v. Blue Ridge Elect. Cooperative: 356 U. 8.525 3

_ General Pictures Co. v. Electric Co., 304'U. S. 175,

(06) eee 29

‘Henkel v. Varner, 138 Fed. 2d 934, 935 (U.S.C.A., :

Be We GUID nent pbbceNeedeassessevanes 21

Higgins. v. Mason, 226 App. Div. . << eererrrrr 27

Hopkins v. E. I. Du Pont de Nemours & Co., 212 F.

2d 623, 625, 626 (3rd Cir.) ... 02,4... . cece eee 3,4,8,29 .

Huddleston v. Dwyer, 322 U. 8. 232,°237.(1944).... 29

Jamieson v. Woodward & Lathrop, 247 Fed. 2d 23, 29

(USCADC), cert. denied 355 U. 8.55 .......... 11

ES ey

TABLE OF CONTENTS |

Journal 816 at p. 830) ............ 2.000, Seas

21 -

. . PAGE

‘Kaempfe v. Lehn & Fink Prods., 21 App. Div. 24d 197 11

Kinney v. State, 191 Misc. 128, 134 ................ 27

Leonard v. Ashley Welding. Mach. & Tron Co., 11

App. Div, 2d 1073, aff'd 10 N. Y. 2d 993 .......:. 22

~ Maize v, Atlantic Refining Company, 352 Pa. 51 .... 8,19

Martin v. Herzog, 228 N. Y. ee er pare 18

Matter of Case, 213 N. Y. 199, 204 ..2.......... 0000, 26

Neely v: Martin K. Eby, 87 8. Ct. 1072 (1967) ...... 3

__N..Y. Cent. R. R. v. Kinney, 260 U. S. 340, 346 (1922) 29

, ae Reimold, 278 Fed. 2d 532, 535 (10th Cir-

GUND -Vedos vic cicarvaneubeedh séccber ne laeesss

_— v. Sinclair Refining Co., 104 Fed. 2nd 183 (CA +i

Quinones v. St. Vincent’s Hospital, 20 App. Div. 2d_.

Se DMs Be SOE ob kcobecccéceccvorece 21

Schfranek v. Benjamin Moore & Co., 54 Fed. 2nd 76,

| Se EE: bxndvacnhstacccwdadiekercteneek 10

Strasberg v. Equitable Life Assurance Society, 281

Ss OI WO op ocdas ce heen ksecdcckackonl, 23, 27

Riehl v. Town of Amherst, 308 N. Y. 212,216 ........ 21

Miscellaneous: ,

Prosser, Torts, 2nd Edition, page 21 ..... Det oie 8

Noel, Manufacturer’s. Negligence of Design or Di-

rections for Use of a Product (71 Yale Law ‘-

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OP GINS 0 CANOE DOIN PACTE ST

inomannsinnplecin

- By iy 1 Oo

Supreme Court of the United States

OcroBER Term, 1967.

No. 455

Cuayton H. Stier,

Petitioner,

v. |

J. A. Sexaver Manuracrurine Co., Inc.’

| and

Diamonp ALKALI Company, |

| Respondents. ©

_ BRIEF OF RESPONDENT J. A. SEXAUER MANUFAC-

TURING CO., INC. IN OPPOSITION TO PETITION FOR

A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND. CIRCUIT

Introductory

Petitioner had appealed to United States Court of Ap-

peals for the Second Circuit from a judgment dismissing

his personal injury action after trial before the Hon.

Tomas F. Croake and a jury in the United States Dis-

trict Court for the. Southern District of New York.

The Court of Appeals affirmed. .

Petitioner had been injured as a result of an alleged ex-

plosion resulting from use of a drain pipe cleaning prod-

uct, ‘‘Mule-Kick’’ packaged and marketed by the respond-

ent J. A. Sexauer Mfg. Co., Inc. and manufactured by the

respondent, Diamond Alkali Company. The accident oc-

curred in Pennsylvania and, concededly, Pennsylvania law

controls (399a). Under Pennsylvania law, a warranty ac-

tion is not maintainable under the circumstances here pres- -

ent (399a). The only question was whether petitioner had

established a prima. facie case in negligence.

Petitioner claimed that the day after he deposited a

second can of ‘‘Mule-Kick’’ into a clogged drain at a

home in Lancaster, Pa., an ‘‘explosion’’ occurred in the

pipe, forcing out a metal plug in a clean-out opening

thereof, following which a spray of sodium hydroxide so-

lution issued from the opening striking petitioner some

eight or ten feet away, causing him to sustain burns.

The chief ingredient-of ‘‘Mule-Kick”, as itis of all drain -

cleaners, is sodium hydroxide or lye. Admittedly sodium

hydroxide has no explosive characteristics (737a-738a).

The cause of the ‘‘explosion’’ of this non-explosive ma-

terial was alleged to be hydrogen formed bythe reaction

of the sodium hydroxide with zinc. Admittedly, there was |

‘no zine in ‘‘Mule-Kick”’ (792a). It was claimed that zinc

was present in the material that was clogging the pipe...

In addition to the admission that ‘‘Mule-Kick’’ did not

have hydrogen producing adulterants, either zine, or any

other, it was also undisputed that the sodium hydroxide

‘in ‘*Mule-Kick”’ was commercially pure (622a), and it was

ecnceded that the product was well fit for its intended

use (817a). Of nécessity, the various claims of negligence

with respect to the manufacture of the product and the

use of dangerous substances therein had to be abandoned.

The only claim of negligence urged is that stated at pages

10-11 of the petition, viz., alleged deficiencies in the label

placed on the can of ““Mule-Kick”’,

. Questions Presented $23 €

Petitioner concedes (p. 17) that there may be such a

deficiency in proof, that a defendant is entitled to a di-

rected verdict. This Court has held, in Neely v. Martin K.

Eby, 87 S. Ct. 1072 (1967), that the Seventh Amendment

- is not violated-whén a Court of Appeals holds that there is

insufficient evidence to present to a jury with respect to

. the issues of negligence and proximate cause.

Accordingly, the question which petitioner says was left

open in Byrd v. Blue. Ridge Elect. Cooperative, 356 U. S.

525, has been answered. ‘The only question is, therefore,

‘whether the Court of Appeals, in affirming the District

Court’s dismissal of the complaint, had properly applied

pertinent Pennsylvania law to the proof that was adduced.

The applicable Pennsylvania law is:

‘But beyond this generality, every case must turn

upon a determination of what will be reasonable be- —

havior by the defendant considering his actual or im-

puted knowledge, both of the danger and the need to

warn or otherwise protect users against that danger.’’

Hopkins v. E. I. Du Pont de Nemours & Co., 212.

F’."2d 623, 625 (3rd Cir.). :

“In this situation the law of Pennsylvania is clear.

It starts with the general proposition that the plgin-

tiff bears the burden of proving that negligent conduct

of the defendant was the proximate cause of plaintiff’s

injury. Erbe v. Philadelphia Rapid Transit Co., 1917,

- 256 Pa. 567, 100 A. 966; Sandt v. North Wales

Foundry Co., 1906, 214 Pa. 215, 63 A. 596. But where

plaintiff’s evidence supports an inference ‘that excludes

liability of the defendant just as strongly as an infer-

ence that comprehends liability, a jury would have to

engage in speculation and conjecture in order to at-

tribute the accident to one rather than the other.

CET mh Ae a ee ag ERI LATE ty enemas

Dangelo v. Pennsylvania R. Co., 1930, 301 Pa. 579,

152. A. 743. Where plaintiff thus leaves the jury to

guess as between suggested causes,. there can be no

recovery. Fix v. Pennsylvania Power & Light Co.,

1943, 346 Pa. 598, 31 A.2d 114; Houston v. Republican

Athletic Ass’n, 1941, 343 Pa. 218, 22 A.2d 715; An-

derson v. Reading Co., 1932, 306 Pa. 246, 159 A. 450;

Gausman v. R. T. emen Co., 1925, 284 Pa. 348, 131 A.

947.7

Hopkins v. E. I. Du Pont de as Co., 212

-F, 2d 623, 626 (8rd Cif.).

"Statement of the Conn

- On January 25, 1961, petitioner, a full fledged licensed

plumber (235a-238a), experienced in’ freeing. clogged

drains (238a) was directed by his employer, together with

a fellow employee, Nixdorf, an equally experienced

plumber (238a, 403a), to 5 Locust Street, a two-family

house in Lancaster, Pa., to repair a clogged drain in the

kitchen sink of the second floor apartment (207a, 208a).

Manipulation of a plunger proving ineffectual (209a-

210a) the men decided to use ‘‘ Mule-Kick’’ which petitioner

had used before and always kept on the truck for use when

mechanical means of clearing a stopped drain proved in-

" effectual (212a, 248a-244a, 246a-248a). It was the only kind

of drain cleaner preparation he used (247a).

‘“Mule-Kick’’ is essentially sodium hydroxide or caustic

soda, i.e., lye (728). Caustic soda has been used commer-

cially in drain cleaning preparations for the past 40 years

or more (907a-908a). It is the basic constituent of all

’ drain cleaners (906a). Concededly, sodium hydroxide has

' . no explosive characteristics (737a-738a). When dissolved in

water it does not give off any gases (908a). It plays a role.

in the production of hydrogen when regcting with alumi-

num or zine (636a-637a).. Admittedly. oe was no zinc in

‘‘Mule-Kick”’ ares

The cleaning properties of sodium hydroxide arise out

of the fact that when it combines with the grease that is

usually present in a stopped up drain it forms ordinary :

soap, readily soluble in water (9082-9092).

Petitioner had read the label on ‘*Mule- Kick”? many

times (273a, .658a), and was fully aware that burns could

_ be caused by contact with it, he always used ‘‘Mule-Kick’’

carefully to make sure that there was no splattering,. no

contact with the hands or face (243a, 264a, 265a, 266a, 271a,

277a, 278a, 279a). It was common knowledge among

plumbers to avoid contact with it because it, as well as any

other drain cleaner, could cause a bad burn (447a, 448a,

o03a).

Petitioner on this occasion again read aa tilled the

_instructions on the label (273a-276a). He and Nixdorf re-

moved the water from the drain (210a), poured the con-

tents of a can of ‘‘Mule-Kick’’ into boiling water in two

batches, stirring until the ‘‘Mule-Kick’’ was dissolved,

emptied the solution into the drain, and left the premises

(213a, 214a). Nixderf cautioned the tenants not to get

their hands into the solution because they might get burned

(502a).

. On the next day, January 26th, petitioner returned alone,

Nixdorf had been despatched to another job (214a). The

drain was still stopped up (215a).. Following the same

‘procedures as before, petitioner used a second can of

*“Mule- Kick” ‘and once more left the premises (215a, 216a).

When petitioner returned on January 27th, the sink was”

still clogged (216a, 218a). It became necessary to trace

.the line in ordér.to determine just where the. stoppage

- was located. This required removal of flooring wherever

it covered the pipes (216a). Exposure of the pipes under

the flooring of the second fidor disclosed that the pipe was

filled with liquid at that point (218a). Petitioner thereupon

went to the first floor apartment and traced the drain

pipe to a wall in the pantry off the kitchen (219a). He

” a a

removed the flooring there and saw a section of pipe with

a metal plug covering a clean-out opening in it (219a, 220a).

The pipe was roughly 17 inches long (910a), ‘about 1%

inches in diameter (300a). It had a two-inch galvanized

elbow. at its top (721la, 91la). The clean-out opening was

~ 2% -inches. below the lower end. of the galvanized elbow

(91la).

- Petitioner removed the plug, oe was no seepage there

(220a). This led him to the conclusion’ that the stoppage

was above, somewheres between the first and second floors .

(271a, 304a, 31la, 321a, 346a). He testified ‘that when

he removed the plug, he saw a small forming of ice (221a),

and that it was not the cause of the clogging of the drain

_(323a-324a). This forming of:ice was in the pipe 6 or 8

inches above the clean-out hole .(331a-333a, 342a), Obvi-

ously, the stoppage was located above the galvanized elhow

the upper edge of which was four inches above the clean-out

opening (9lla). He replaced the plug, tightening it by

hand (224a, 321a), ‘‘finger tight’’ (337a). Note Nixdorf’s

testimony that the threads of the cut-out opening was

degenerated (470a), there were no threads (539a). Al- .

ough there was only a ‘‘small forming”? of ice, petitioner

‘went to his truck.and fetched a Prestolite torch, which

emits heat of 3500° Fahrenheit (776a), because, he figured

‘that while he was there, he ‘‘might.as well get rid of this

' small forming of ice to eliminate future trouble’’ (222a).

This claim of a small forming of ice unrelated to the -

clogging of the drain was new-born in the litigation. On

March 3rd, 1961, a few months after the accident, before

‘any suit was initiated, petitioner, when interviewed by an

investigator for the Workmen’s Compensation carrier, —

made the re written statement (Defendant’s Exhibit

/ “After the plug was removed, I could see that there .

/ was ice blockage that was causing the trouble. I re-

_ Placed the plug and used a torch to heat the drain -

pipe under the. floor, where the ice blockage was

— Joeated.”’ .

al ™~

The pipe was located in an outside wall (303a-304a) and

it is to be noted that the temperatures on January 21st

ranged from —8° to 21°; on January 22nd from —13° to

19°; on January 23rd from —9° to 21°; on January 24th

from —7° to 21°;'on January 25th from —1° to 18°; on

January 26th from —1° to 16° and on —— 27th from

—20° to 1° (843a-844a).

The need for petitioner’s change of position with respect

to the presence of ice and its effects mecca apparent

when we analyze the expert evidence. .

~ After petitioner applied héat to various parts of the pipe,

he took a snake to the second floor and ran it through the

- lines (222a, 343a). Nothing happened, the water remained

(222a). ‘As he was manipulating the snake, he could see

_ the mixture inside the pipe (347a). There.was no spraying, -

_ no bubbling, no signs of pressure, no evidence of escaping

gases, no propulsion upward of any fluid (347a-349a):

Petitioner did not know what to do next and went back

‘ to the first floor (223a). He stationed himself at the pantry

door some distance away from the pipe he had heated,

contemplating his next move, when he heard a noise like

_@ firecracker and was then hit by a spray of sodium

hydroxide solution issuing from the clean-out opening

| (223a).

Petitioner’s theory of the. accident, advanced iis a

chemist, Dr. Willard, was that the pipe had been clogged at

the galvanized elbow; that the clogging material contained

zine; that the sodium hydroxide of the ‘‘Mule-Kick,’’ com-

bined with this zinc to liberate hydrogen, that the hydrogen

forced the plug out of the clean-out opening causing

the sodium hydroxide solution to spray out (712a, 720a,

727a, 129a-78la, 791a).

POINT 1

eae” tie cniiieah Demotead os dalned, te

ie ee, correctly ruled that there was no issue

\ asto ) negligent deficiencies i in labelling.

The alleged failure to warn against possible

Ve explosions. (Petition, p. 11) _

There was no proof of an ‘‘explosion’’. The claims of

“*explosion’’ comes only from petitioner’s counsel. The

expert, Dr. Willard, never said there had been an explo-

sion. She claimed that the plug had been forced by the

_ **pressure’’ of hydrogen forming and trapped between

the clogging material and the sodium hydroxide solution

above (729a-731a). In any event, the statement that the la-

bel should have warned of a possible explosion: is a mean-

ingless generality, as was’ pointed out in Hopkins v., E. I.

DuPont de Nemours & Co. (3rd Cireuit), 212 Fed. 2d - ~

623, when it discussed Maize v. Atlantic Refining Com

pany, 352 Pa. 51, so strenuously relied’ upon by petitioner.

We quote again mm 625): ~~

**But beyond this generality, every, case must turn

upon a determination of what will be reasonable be-

havior by the defendant considering his actual or im-

‘puted knowledge, both of the danger and the need to —

warn or otherwise protect users against that danger.’’ -

Prosser, Torts, 2d aan, page 121 summarizes the

problem: ssl

‘‘A risk is a danger which is apparent, or should be

apparent, to one in the position of the actor. The:

culpability of the actor’s conduct must be judged in

‘the light’ of the possibilities apparent to him at the

time, and not by looking backward ‘with the wisdom

born of the event.’ The standard must be one of con-

duct, rather than of consequences ... The court must

put itself in the actor’s place.’’ (Emphasis supplied)

Since sodium hydroxide admittedly has no sida:

characteristics, the issue is the foreseeability of explosion -

by contact with other materials, specifically by formation

of hydrogen, the purported explosive agent in-this case.

The presence of zinc is the. alleged cause for the forma-.

tion of hydrogen. Aluminum. concededly was not present

anywhere (804a, 806a). The -issué is, therefore, not « -

whether it was known to Sexauer - ‘as a general proposi- .

tion of chemistry that sodium hydroxide in ‘combination

with zine would liberate hydrogen but whether it knew or ~

should have foreseen and warned, against that. chemical

possibility under the circumstances of this case.. This re-

quires an examination of the source of the zine which pur-

portedly combined with ‘‘Mule-Kick”’ to liberate hydrogen.

It was petitioner’s claim that the material that ‘clogged

the drain contained all sorts of waste matter, including

1.2% of zine (715a-720a, 794a) which reacted with ‘‘Mule- .

Kick”’ to produce hydrogen ( 729a-731a, 791a). ,

It is “ Mule-Kick’s”’ reaction with this zine, ‘sdrentiuends ji

present in: the stoppage material clogging the drain and

discoverable only by microscopic examination, that peti-

tioner contends respondent Sexaner should have warned

about on the label.

The record makes clear the complete Gnreasonabjences

‘of this contention.

There was no proof of the frequency with which clogging

material in drainpipes contained zine elements.

There was no proof that clogging material in i

usually contains zine elements.

Sodium hydroxide has been used as an ingredient of

drain cleaning preparations for forty years (907a). All

drain cleaning preparations have sodium hydroxide (906a).

One would think that.if there were a foreseeable hazard of

explosion or dangerous pressures resulting from the for-

mation of hydrogen caused A by a reaction. of sodium hy-

_ droxide with zine-containing clogging material there would -

be some prior similar incidents. No such proof was made,

‘or even attempted.

_ The proof was that in the 5 years prior to 1960, 3,800,000

ans of ‘‘Mule-Kick’’ have been manufactured and used

(1038a). There is no éuggestion that during those years

_ there had been so much as. one complaint of ‘any such

incident as here allegedly occurred.

Why, in ‘all reason, should a warning be given of the

hazards of an explosion or dangerous pressures caused

by the liberation. of hydrogen induced by the reaction of |

sodium hydroxide with zine elements fortuitously present

in material clogging a drain when, in all the years of prac-

tical experience no such incident was ever heard of?

‘*When a manufacturer has used a particular design

‘for along time or on an extensive scale without mis-

hap, this would seem an important indication that no .

unreasonable risk is created by continued ‘distribution

ofa aay of a mye design. 99,

Noel, Momstactaree' s Negligence of Seale or

Directions for Use of a Product (71 Yale Law

Journal 816 at p.-830).

The accident in this case, even if occurring as petitidner

_ claimed, which we do not concede at all, exemplifies the

truism expressed by the Court in Schfranek v. Benjamim

Moore & Co., 54 Fed. 2nd 76, 77 (DCSDNY): —

. “The zone of the poses | in casualties is prac-

tically limitless.

‘¢ Almost anything in the way of an accident is

possible. Fully to realize such possibilities usually re-

quires much reflection after the event. .

“The zone of the probable, however, is very no

narrower, and that is the zone with which tort liabili

_is concerned, and a survey of it involves the exercise

' -of reasonabde foresight only.’’

™

The presence of zine elements in clogging material in a’

drainpipe, let alone in quantities sufficient-to create an

explosive amount of hydrogen, is so remote, so far-fetched,

so unusual, so outlandish, that there can be no factual ©

basis for a jury to say that such a hazard was reasonably

expectable so as to require warning,

‘“‘[W]here there might be only a remote possibility

of danger, failure to warn is not negligence.’’ -

Bish v. Employers Liability Assurance Corp. (5th

Cir.), 236 Fed. 2d 62, 69.

} in Kaempfe v. Ldn & Fink Prods., 21 App. Diy. 2d 197,

it was said at page 200:

“On the other hand, it j is clear that the manufacturer

or seller should not be held bound to anticipate and

warn against.a remote possibility of i injury in an iso-

lated and unusual case. The law requires a person to

exercise reasonable care to guard against probabilities,

not mere remote possibilities. A supplier of a product

in daily use ought not to nse placed f in the position of

an insurer.’

In Boyd v. American Can Company, 249 A. D. 644, affid.

274 N. Y. 526, it was pointed out that a manufactu r

‘‘may not be charged with négligence where some unustal

result oecurs that cannot reasonably be foreseen and is nbt

within the compass of reasonable probability. It is not

enough that in the intended use injury is possible.’’

The point is pithily summed up by the Court in Jamieson

v. Woodward ¢ Lathrop, 247 Fed. 2d 23, 29 (USCADC),

cert. denied 355 U. S. 55:

‘‘Reasonable foreseeable in the rule here applicable

does not encompass the far reaches of pessimistic

imagination. ’?

We assume that the purpose of the warning contended

for is to deter persons from using ‘‘Mule-Kick’’ when

there is zinc in the material clogging the drain‘pipe. This

_ would require knowledge of the ingredients of the clogging

material. How does petitioner propose that this knowledge

be acquired? To determine the presence of zinc in clogging

_material by microscope or otherwise, would require the

removal of the clogging material for examination. If that

ean be done, then there ‘is no need for ‘‘Mule-Kick’’ or

any other similar drain cleaning product. The very pur-

pose of ‘‘Mule-Kick’’ and other like products is to cope

with clogging material that cannot be effectively handled by

mechanical means. Surely petitioner does not suggest that

if ‘a pipe is clogged by waste material that cannot be re-

moved by mechanical means, no drain cleaning preparations

should, be used, because perchance, the stoppage might

contain zinc elements which could combine with sodium

hydroxide to liberate hydrogen. That is the plain implica-

tion of the suggested warning. The suggested warning is

so divorced from practical reality as to demonstrate its

lack of reasonableness. As has been said, in the striving

for safety one is not required to go beyond the bounds of

what is practicable and reasonable. (Beauchamp v. N. Y.C. °

Housing Authority, 12 N. Y. 2d 400, 407.)

Dr. Willard had made it clear that the source of the

- gine that she was opining about was in the clogging mate-

rial, which may or may not have come from the galvanized

elbow (796a-807a). Apart from that there was no evi--

‘dence to establish the need for a warning that the passage

of ‘‘Mule-Kick’’ through a galvanized elbow created a

danger of forming hydrogen in dangerous quantities. The

only evidence remotely relevant to that claim was given

by Nixdorf, a fellow worker of the plaintiff, an experienced

plumber (238a, 403a). He testified that in all his years

of plumbing experience and as a trouble shooter, he had

used ‘‘Mule-Kick’’ on all types of pipes, he never inti-

mated. that he had experienced any difficulty (502a).

13.

Plaintiff, a similarly experienced ° plumber, said nothing

about any observations made in the years that he plied

his trade of cleaning clogged pipes that as mych as hinted

- at anytliing untoward océurring when ‘‘Mule-Kick’’ was

poured into galvanized pipes.

Neither from the body of scientific knowledge or from

the history of the use of drain cleaners, was there any in-

timation of a known or experienced danger from gases

related to classification of drain pipes and, hence, to be -

warned against. -

Here, too, the duty contended for, to be meaningful,

_, ‘would require that every time there was a clogged drain —

-problem that could not be resolved by mechanical‘ means,

the floors and walls of the building would have to be ripped

apart, as was done in this case, to determine whether, by

chance, the section of the drainage system where the stop-

page occurred utilized galvanized pipe.

We submit, accordingly, that the alleged hazard of

hydrogen forming by the reaction of ‘‘Mule-Kick’’ with

a galvanized pipe was so remote, so distant, so unlikely,

that there could be no rational basis for a determination

that there was a need to warn against it.

Apart from the above, the proof is clear that the -gal-

vanized elbow could not possibly have played a role in

the alleged production of hydrogen. As pointed out earlier,

petitioner saw~ice forming 6 or 8 inches above the clean-

out opening, meaning that the stoppage material, if acting

as claimed, was above the galvanized elbow which ended

four inches above the clean-out opening.

How it is possible for the zine of the galvanized elbow

_ to travel upwards, through the air tight stoppage, in order

to combine with the sodium hydroxide resting on the stop-

page material was never explained. It cannot be explained.

. The claim that the label was misleading in its

‘ statement that there was no disguised perfumes,

no dangerous bubbling adulterants, causing in-

jurious spray, explosive gases and harmful fumes.

° (Petition, p. 11)

This claim is an exercise in reckless averment.

The adulterants which can cause bubbling and the forma-

tion of explosive gases are zinc and aluminum.

Dr. Willard, who analyzed ‘‘Mule-Kick’’ on behalf of

' petitioner admitted that ‘‘Mule-Kick’’ had no zinc

adulterant (792a).

Dr. Willard never claimed .that “Mule- Kick” had any

. aluminum adulterant. Dr. Snell testified that it did not

(907a). His testimony was undisputed.

Dr. Willard conceded that ‘‘Mule-Kick”’ was a product

well fit for its-intended purpose (817a). She made no claim

that the sodium hydroxide in it was impure (817a). The

. proof that it was commercially. pure (622a) was undis-

puted. |

Petitioner and his ‘fellow worker, Nixford, had used

‘*Mule-Kick’’ many times before. Neither claimed that on

any occasion it had ever been observed to bubble, to spray,

.to emit gases or fumes of any kind.

In the face of the above concessions, admissions and

undisputed proof, it would be. impossible for a jury to find

that there was any misstatement in the label when it set

- forth that ‘‘Mule-Kick’’ contained ‘‘no disguised perfumes,

no dangerous bubbling adulterants, causing injurious

spray, explosive gases or harmful fumes.’’ If there were.

_ such a finding by a jury it would be in plain and imper-

missible disregard of all the evidence in the case.

’

The claim that the label was misleading because

the word “safe” was used. (Petition, p. 10)

“This claim demonstrates the fallacy and vice of urging .

a contention on the basis of a word taken out of context. |

Any fair reading of the writing on the can makes it ap-

parent that there was no representation that here was a

product that was totally harmless under all circumstances.

_ It had the legend ‘‘poison’’; it contained cautions to keep

away from face and hands. It advised of antidotes to

caustic burns, external and internal, with specifie reference

to the eyes. .No one who could read could possibly be

misled into believing that he was using a anne, innocuous

product, harmless no matter how used.

It is clear that the word ‘‘safe’’, when read in context,

referred to the fact that it had no disguised perfumes, no

dangerous bubbling adulterants, causing injurious spray,

explosive gases or harmful fumes. We have demonstrated

that the product was resets di as labelled, that it had none

of these hazards. -

. Nothing demonstrates more cogently that ‘‘Mule- Kick”

was a safe drain pipe cleaning product, as labelled, than

-its prior use by petitioner. He had used “Mule-Kick”?

many times before. It was a standard item he always kept

on his truck for use when mechanical means of. freeing

drains proved ineffective. It was the only drain cleaner he

used (212a,.243a-247a). .

When petitioner used ‘‘Mule-Kick’’ carefully, as directed

it never caused him any harm (264a, 659a-660). In other

words, as was testified to by all, when used properly it was

a safe draing cleaning product. ( 264a, 449a, 1027a). That is

all that the label said it was. True if misused, as by spilling

or splattering over the hands, or on the face, or the body,

harm could come. But harm can come from use or misuse

of anything. screeners a hammer can magn a thumb, ora

‘knife can cut a hand, or a stove burn a finger does not

make the hammer or knife or stove unsafe. |

There is. not so much as an intimation that in all of peti-

tioner’s prior use of ‘‘Mule-Kick’’, there has ever been

a bubbling or spraying, or formation of gases, explosive

or otherwise, or the. production of mumes of any kind.

_ If there had been, surely petitioner wolud have worn the

goggles that his employer had furnished him to use when

working with ‘‘Mule-Kick’’ (547a-549a). He never used

them (247a), clearly demonstrating that there was no

known hazard of bubbling, spraying, gases or fumes in-

- herent in ‘‘Mule-Kick’’. At all times the product was as

labelled, a safe drain cleaner, containing no disguised per-

fumes, dangerous bubbling. adulterants, causing injurious |

spray, explosive gases or harmful fumes. There is no evi-

dence which would permit a jury to find that ‘‘Mule-Kick’’

was not as safe as the label said. it was.

‘The claim of negligence i in labelling because the

words “lye”—“or caustic soda” were not used.

(Petition, p. 10)

. The label stated that the product contained sodium —

hydroxide. This, argues the petitioner, was not enough.

The description, he urges, should have used the words

‘lye’? or ‘‘caustic soda.’’ Apart from the fact that there

is no evidence that such a labelling was required by any

. statute, rule, regulation, usage or eustom, the claim of

negligence in that regard is a meaningless abstraction.

| Since sodium hydroxide (lye) has no- explosive character-

_ istics; we assume that the gravamen of the claim that the

words ‘‘lye’’ or ‘‘caustic soda’’ should have been used is

_ to caution users against the possibility of burns to the

. end that uers could take appropriate action to avoid pos-

sibility of injury of that nature.

. That caution was present i in no uncertain. ia Seslioiie The

label contained the warning ‘‘Poison’’.. The label warned

_the user that if there was contact with ‘“‘Mule-Kick”’, to

. 17

call a physician. It told the user of the possibility of -

caustic burns and advised what antidotes to-use for such

burns, whether internal and external, with specific refer-

ence to the eyes. How much more information would

petitioner have had about the hazards of burns were the

words ‘‘lye”’ or ‘‘caustic soda;’’ substituted for the words

sodium hydroxide? .

_ The purpose of warnings is to give the user information

that would afford him the opportunity to shape his conduct,

to take such a course of action as may be needed to avoid

the possibility of harm. Petitioner had “the needed infor-

mation from the label and, what is more, acted on the in-

formation, and when he did it, he came to no harm * (264a,

658a-659a ). | Ns 3

He had read the label many times (273a, 275a, 658a),

and knew that he should be careful to keep ‘‘Mule-Kick’’

away from his hands and face (277a). He knew of the

_ hazards of burns (276a).

As a result of his reading the cautions on the can he —

used ‘‘special care’’ in pouring the ‘‘Mule-Kick’’ into water

(264a-265a). He was always careful not.to get the mix-

ture on his hands (264a, 271a, 277a; 279a, 286a). He was .

always careful to keep the contents of the can or any part

of them away from his face (265a, 271a, 277a, 279a). He

was careful not to have the contents splatter over him

(2662). ="

His conduct could not possibly have been any different

had the words ‘‘lye’’, or ‘‘caustic soda’”’ appeared on. the

label. He was a trained, experienced, licensed plumber

(206a, 208a). It is inconceivable that the presence of the

words ‘‘lye”’, or ‘‘caustic soda’’, would have deterred him °

in the slightest ‘from using the product. .

- There is no suggestion in the record as to what more he »

could or would have done-had the words ‘‘lye”’ or **caustic

soda’’ been substituted for ‘‘sodium hydroxide’’. Clearly,

had the words ‘‘lye’’ or “‘caustic soda’’ been on the label,

he would not have done things any differently than he had

done in the past,-or on this occasion, to wit, used special

care in pouring, used care to avoid contact with his hand

and face, used care to avoid splattering. The presence of

the words “lye” or ‘‘caustic soda’’ would not have. altered

his conduct in the slightest. The absence of the words

‘‘lye’’ or ‘‘caustic soda’’ was, at most ‘to use Pollock’s :

phrase, ‘‘negligence in the air’’, that was not the proxi-

mate cause of anything that occurred (Martin v. Herzog,

228 N. Y. 164,170).

It follows, therefore, that ‘there was no possible factual

basis for a jury to say that had the words ‘‘lye’’ or

‘caustic soda’’ been present on the label, what occurred

would not have occurred, and hence that the failure to use

those-words was actionably negligent.

The claim that there was no warning of the

danger. of splattering. (Petition, p. 11)

Here, again, is argument in the abstract, divorced from

the facts. Splattering might occur when a solution is pre-

pared (700A).. The way to avoid splattering when a solu-

tion is prepared is to pour the caustic soda slowly (700A).

That is precisely what the label on ‘‘Mule-Kick”’ advised

the user to do—‘‘Pour contents of can into pail Siow ty,

stirring with stick.’’ ‘‘Pour solution slowly down drain’’

(Petition p. 6). As narrated earlier, that is precisely what

petitioner did on all the occasions that he used ‘‘Mule-

Kick’’, that was how he avoided _— (264a-266a,

271a, 277a, 279a, 286a). =.

Since petitioner did exactly as he was advieed to do

by the label with respect to avoiding the hazards of splat-.

tering and since the label told him and warned him of the

need to avoid splattering, just what is it that petitioner

claims is the connection between the language of the label

and what. si rasn to petitioner? ‘There i is none.

. 19

But apart from that, the accident did not happen when

_ the solution was being prepared, the time when splattering

might occur. At the time of the accident, petitioner was

not using or preparing a solution of ‘‘Mule-Kick’”’. At the

time of the accident he was not doing any drain cleaning

work at all, he was standing a distance away from the

pipe, contemplating what to do next. Preparation of the

solution, with the attendant possibility of splattering, had

been completed the day before. If by happenstance, a

tenant, a visitor or anyone. else were to pass by in that

room at the time when the ‘‘Mule-Kick”’ was not. being

used or handled or. prepared; it could not be contended

that such individuals should have been warned about a

. Splattering that could occur only when the solution was

prepared for use. Petitioner’s situation at the time of

the accident was no difftrent.

Once again, there was no duty to warn petitioner of

what he obviously already knew. In any event, the al- .

leged absence of warning had absolutely no proximate re- °

lation to what occurred. 7

ae POINT II

The authorities relied on by petitioner.

In Maize v. Atlantic Refining Company, 352.Pa. 51, the

warning was in. lettering much smaller than that of the

other writing on the label. That fact, joined with the

name of the product printed in large letters ‘‘Safety-

Kleen’’, was held to constitute a negligent and misleading

labeling.

Pease v. Sinclair Refining Co.; 104 Fed. 2nd 183 (CA 2),

dealt with an outright mislabeling, a bottle containing wate1

was marked as containing kerosene. Patently, that is not

this case. | ? ,

oo:

POINT Ill

There was no competent proof that\the accident hap-

pened as claimed. ceor ;

+ we.

The hazard which petitioner says he should have been

warned against was the possibility of an ‘‘explosion”’

caused by hydrogen forming by the reaction of ‘‘Mule-

Kick”? with zine present in the stoppage material. Pat-

ently, if petitioner failed to prove. ‘such | an accident, he.

has not proved his case. ;

‘We urge that petitioner has not made any niente

proof of his claim and that the dismissal of the —

was, therefore, necessary.

The necessary factual premise for the opinion

by petitioner’s expert was not established _

Petitioner’s case rested on the testimony of the expert,

Dr. Willard, to the effect that there was zinc-containing

_ stoppage material in the galvanized elbow above the clean-

out opening, that the “‘Mule-Kick”’ had ‘reacted with the

zinc in the stoppage material to form hydrogen which.

. ultimately forced out the sodium hydroxide solution.

through’ the clean-out opening with resultant spraying on

_ the petitioner. Whether the plug was forced by ‘‘explosion”’

of hydrogen as petitioner’s counsel says, or by the pressure

of hydrogen, as petitioner’s expert claimed, for this theory .

to have validity, it was essential to establish that the zinc-

containing stoppage material was present in the galvanized |

-elbow. where allegedly the hydrogen was liberated. There

was no such proof.

Almost three years after the accident, Dr. Willard was.

given thé section of pipe containing the clean-out opening

from which the sodium hydroxide solution had issued

-(706a-707a). ‘At the bottom of this pipe, well below the

-. elean-out opening, Dr. Willard found solid, dried up mate-

_ Trial (706a-707a, 710a) which, upon microscopic analysis,

oo ie | ac °

. ‘ . ai ‘

disclosed, among other matter, the presence of 1.2% zinc .

(715a-720a, 794a). It was this zine she claimed that re-

* acted with the ‘‘Mule-Kick’”’ to produce the hydrogen

(729a-731a, 791a).. le

There was no aluminum there that could produce hydro-

gen (804a, 806a). .

Vow dire of Dr. Willard elicited that she ‘‘assumed’’

that the zine-containing stoppage material had prior to.

the accident, been above the clean-out opening (712a). Ob-

viously she had to assume that it was in the galvanized

_ elbow otherwise there would be no zine with which ‘‘Mule-

. Kick’’(727a, 791a, 829a) could come in contact with and

react to duce hydrogen. When objection was taken to 2

her expressing opinions based on that assumption (712a-

714a), counsel for petitioner assured the Court that “‘this

will be tied in” (714a). The tieing in was never’ made.

_ Accordingly, the major premise for Dr. Willard’s opinion

that the ‘‘Mule-Kick’’.reacted with zine in the clogging

material/in the elbow to produce’ the hydrogen asserted to

be the us of the accident was never established. Her

opinion that ‘‘Mule-Kick’’ reacted with zine present in the

clogging material in the galavanized elbow was without

‘any factual foundation whatever and her opinion was with-

out any probative force. |

An expert’s opinion has no greater force than the.

grounds. on which his testimony shows that it is based

(Riehl v. Town of Amherst, 308 N. Y. 212, 216; Quinones

v. St. Vincent’s Hospital, 20 App. Div. 2d 690, affd. 16

N. Y. 2d 572). :

_. There being no factual basis to support the major prem- —

ise of the hypothetical question posed to’ the expert, her

answer to the question should have been stricken as of

no evidentiary value (Order v. Reimold, 278 Fed. 2d 532,

535 (10th Cireuit) ; Henkel v. Varner, 138 Fed. 2d 934, 935 _

(U.S-C.A., Dist. of Columbia). t. poek ie ;

' Petitioner’s counsel argued that since the zine-containing

stoppage matérial was found at the bottom of the pipe, it

could be inferred that sometime’ before the accident it had

been above the clean-out opening (862a). That inference.

' made, the gist of petitioner’s theory was that it could be

then further inferred that the stoppage material was pres-

ent in the galvanized elbow above the clean-out opening; ..

- that hydrogen had been ‘liberated at the point, that it was

trapped at that point creating pressure on the stoppage

material forcing it.down to the bottom of the pipe and

expelling the clean-out plug. This is the classic example of ~

reaching a conclusion by basing inference upon inference.

‘ In Leonard v. Ashley Welding Mach. & Iron Co., 11

_ App. Div. 2d 1073, aff’d 10 N. Y. 2d 993, there was a fire

caused by an explosion. in an oil. burning furnace.

Plaintiff proved that in making repairs to the boiler,

defendant’s employee had stumbled over its feed line.

* The next ‘day, the odor of fuel oil pervaded the boiler

-r6om and other parts_of the premises. There had been —

_ no such odor prior to that day. The day after that, there

-was an explosion. Plaintiff urged, through an expert, that

there had been a disturbance of. the oil feed line which

created a leak in the firebox; that, as a result, oil lay in the

firebox until it became heated by the radiant heat of the

burning oil from the jet; that as it became heated, it gave

off vapors discernible throughout the premises, that when

‘it reached a particular heat and the correct explosive mix- |

ture, it exploded. . The Appellate Division in reversing ~

* plaintiff’s judgment and dismissing the complaint wrote: |

“Although. there is proof that defendants came in

contact with the fuel line, there is no proof that de-—

fendant-caused any damage thereto, or that there was

an oil leak inside the firebox, or that defendants caused

_ such leak, even if itis presumed that such leakage did

oceur. The contfary conclusion stated by the expert

‘Witness, ca | by plaintiffs, was based upon an as- - =

sumption of facts, which were imadequate to sustain

. the inferences upon which the conclusion rested. Such

conclusion could have ‘been reached only by basing

inference upon inference.’ Whenever facts are sought

to be-proven by circumstantial evidence, every infer- .

ence must stand on some clear direct evidence, and not

on some other inference or presumption. (Lamb v.

Union Railway Co., 195 N. -Y. 260, 266; Ruppert ‘v.

Brooklyn Heights RR. Co., 154 N. Y. 90).’?

The above is precisely the ‘posture of Dr. Willard’s

opinion. |

The only proved fact was the presence of zine of un-

known origin in the stoppage material found at the bottom

of the pipe below the clean-out opening. The various opin-

ions expressed by Dr. Willard, all premises of her finding

a small quantity of zinc in stoppage material at the bottom:

of the pipe, constituted a series of intermediate conjectures

leading to the ultimate desired conjecture.

“Words put in the form of an opinion uttered “by

a witness, even though he be an expert cannot create fe

_ an issue of fact when the factual basis for the opin-

ion does not sustain his conclusion.”? ;

Strasberg v. Equitable Life Assurance Society,

281 App. Div. 9,13. |

There was insufficient factual data for

: Dr. Willard’s opinion. —

An expert’s willingness to give an opinion on the basis |

of patently inadequate and insufficient data, does not mean

' that he shouldbe allowed to do so on the theory that —

the insufficiency of the data merely affects the weight to

be given to his opinion. Willingness to render an expert

. Opinion is no substitute for the facts needed as a founda;

tion for a scientific‘opinion. It outrages all concepts of the

¢°

. byan expert’ s opinion, merely because the expert is amen-

. able to giving one notwithstanding the lack of satersnaten

her opinions.

It’ should be noted that Dr. Willard, testifying about

phenomena dealing with drain pipes and drain cleaning

_ analysis of drain cleaners for manufacturers or distribu-

tors (789a-790a). She had never had any commercial con-

her inexperience is the reason why she felt no inhibitions

about rendering opinions despite enormous -gaps in in-

formation.

She was not told how much ‘‘Mule-Kick’’ had been ‘ies

(739a). .

She assumed that the ‘accident occurred between an

‘hour -or hour and a half after the second solution : of

‘‘Mule-Kick’’ was poured into the sink (741a). The fact of

aaa ah of tlie second solution.

She was not told about any ice blockage, only that there

— were ice flakes (750a).

She was not told about the size or ee of the. ice

inside the pipe (757a, 760a), but ‘‘assumed,’’ nevertheless

that it was not sufficiently large to cause blockage (771a).

She did not know that the torch plaintiff used to thaw

the ice'in the pipe poseratel heat of 3800° Fahrenheit

(75la) . ;

, judicial process to. say that a question of fact can be made . ;

Dr. Willard did not, by far, have adequate data to, side

materials, had never made any study of drain cleaning —

preparations in general (789a). She had never made any

nection with drain cleaning preparations (790a). Perhaps ~~

She was not told tis much water wit been used (7 398).

the matter was that.the accident occurred the day s after the -

apa

She could have measured the amount of hydrogen that

25°

was liberated but had made ‘no such measurements (795a).

The amount of hydrogen emitted can be caleulated from -

| the quantity of zine that; is present (795a-796a). She did

- not know the weight’ of the stoppage material ‘which eon- ,

tained the zinc she was urging as the source of) the’ ex-

ploding hydrogen (796a). She. could not say how much

hydrogen had been liberated by the 1.2% zine in the stop-

. page (794a). \

She did not know how ‘long the zine had been in the

pipe (791a, 839a-840a). She could not state its source

(796a, 807a). | : |

The prevailing temperatures ranged from below 0 to 20°

during the three days in issue. Dr. Willard was riot told

anything about those temperatures although she had in-

quired about them because of their possible effect on the

production of hydrogen (828a). When it is cold, zine will

"not react to produce hydrogen (847a, 958a); ae

She did not test any galvanized pipe with caustic solu-

tions to see what the reactions would be (830a). -

' She knew nothing of the prior use of pipe cleaning prep-

arations (84la). There was testimony that the tenants

had, a few days earlier, inserted drain cleaning prepara-

__tions into the pipé. She had not been told of that (779a-

7802). : Ere oe ee

She said that the hydrogen did not escape upwards

becaiise of the presence of the column of water above it

_- (839a). She, conceded that the column’s capacity to

prevent escape of gas depended upon its weight (833a).

She did not know what that was but ‘“‘assumed”’ a length

We submit that such tremendous lacunae in information

are fatal to the prebative value of her opinion, they make

' her opinion sheer conjecture. ae

di degnt’s willingness to assume whatever is needed —

“for the purpose of rendering opinion despite absence

of vital facts, his readiness to say the magic word that

is required to establish a prima sia case does not con-

stitute proof. ~ |

= _We believe that the analysis of Dr. Willard’s diintieniatey |

makes_applicable the oft-repeated rule-:

“cWhen we say that there is no evidence to go to

& jury, we do not mean that there is literally none,

- but that there is.none that ought reasonably to satisfy

@ jury 4nd the facts. or ssfirall stated estab-

~ Tished.”?

| Matter of way 213 N. Y. 199, 204.

‘©

POINT IV

‘The shisties! facts demonstrate that there was no

| accident caused by hydrogen ascleimed.

Nae ace aan

If hydrogen formed as claimed by petitioner, it. would

begin: forming the.moment that there was contact between.

the sodium hydroxide and the zinc., and would continue —

_ to form during all the time of such contact (835a-836a). . .

Were plaintiff’s theory correct, hydrogen would have

begun forming on January 25th, and continued to form

until the accident occurred on January 27th.

’ Admittedly, hydrogen is fourteen times lighter than air

and its natural tendency would be to rise and escape (831a,

836a). If forming in liquid, the hydrogen would visibly

bubble up, particularly if heat were ‘spplied. ‘Dr. Willard

testified at page 84la:

**Q. Assuming that hydrogen gas is there, was there,

whenever the high eaustic or high amount of caustic

was put in there, assuming that hydrogen was there

the 25th, 26th and 27th, when the torch was applied,

sss *

27 |

wouldn’t that heat tend to send the gas up? A. Yes,

“*Q. Especially if you had heat of 3500° Fahrenheit,

that would send the gas up, wouldn’t it.and disappear?

A. But you would see it bubbling. -. ‘“. 3 |

**Q. You would see it bubbling through? ‘A. Yes,”

It was admitted that no such-bubbling phenomenon was -

ever observed. The pipe on the second floor was open,

. Plaintiff looked into it shortly before the accident, the’ .

_ Inixture-was visible to him (347a). It did not spray up out

of the pipe’(347a), it showed no signs of pressure or of

gas of any kind: (348a), there was no propulsion upward

of any fluid (349). 7

It is simply inconceivable that if hydrogen were form- :

ing at the elbow since January 25th, there would, dur-

ing the two and a half days of its continuous liberation,

_ be ne evidence whatever of its bubbling up and out.

_ Here then was a conceded, physically observed phenome-

non, conclusively demonstrating that no gas was forming or

escaping and completely negating the theory of the pres-_

ence and formation of gas. When opinion’ explanations

are contradicted by the physical facts, the facts must pre-

vail. (Strasberg v. Equitable Life Assurance Society, 281.

App. Div. 9, 13; Higgins v. Mason, 226 App. Div. 426, 429;

Kinney v. State, 191 Mise. 128, 134.) . ai ay

There was no evidence of the consequences that one would

normally expect to follow an ‘explosion’? of hydrogen in a

pipe, such as a busting or splitting of the pipe, a tre-.,

mendous noise, a flash of some sort, a fire of some kind.

There was no proof. that when the ‘‘explosion’’ occurred |

there was any splattering of liquid on the second floor, —

where the pipe was.open permitting Teady escape of any-

thing in it, were there an explosive foréeacting inside the

pipe. Altogether it is clear that there was no explosion of

hydrogen. © es

“The occurrence, however, was. nat: a mystery shrouded Ke

Reppeing, it ‘was readily explainable.

As in ndicated earlier, before ‘ariy suit was: Seatiiemlated,

geen tress had stated that he had determined the cause of

_ the blockage to be ice in the pipe above the clean-out open-"

_ ing. | He had used a Presto-lite torch to melt « or thaw-out

this ice after having hand-tightened the plug that covered

the ‘clean-out opening. Dr. Snell, testifying for the de-

fendant, explained what happened. When the ice: blockage

finally thawed or- melted, there was nothing ‘to hold back

the column of water above it, it fell by force of gravity

creating a sufficient pressure to force out the ‘hand- |

tightened plug and cause the solution to spray out of - the

opening (988a-989a). te i

-Dr. Snell had recreated the conditions in the pipe—the

eolumn of water, the clean-out opening, the stoppage; when -

the obstruction to the column was removed the water fell

and sprayed as the solution did in the agcident (989a-996a). .

-Dr. Willard admitted that if there were ice in the pipe

obstructing the column of water above, the column-would

exert pressure on the blocking ice (762a-764a). She ad-

mitted that the column tended to force the obstruction —

_ down (764a). She admitted that if the ‘‘Mule-Kick’’ mix-

‘ ture had been standing in the pipe, it would be restrained

-@ by the ice blockage from flowing away (763a). She ad-—

_ -mitted that if the ice blockage were removed, there would

be a free fall of the column of water with the ‘‘Mule-Kick”’

in it (764a). She conceded that application of the Presto-.

lite torch would tend to melt and thaw the ice blockage

_ (759a-760a). She conceded that the thawing of the -ice,

_ plas the. pressure exerted by plaintiff in manipulating the

snake on the second floor, might have contributed to-the |

_ fall of the column: of the mixture in the pipe (774a).

‘Since it is at least as likely that that happened as what

_ petitioner claimed happened (we submit that the free fall

" is the true explanation for what occurred), respondent may

ee ae

not, under Pennsylvania law, be held liable. (Hopkins v. eg

E. I. DuPont. de flemoure & Co., 212 F. 2d 623, quoted, ie

infra, at pp. 3-4.) . BN se

Reasons for Denying the Writ

‘We have demonstrated that. the issues here are all fac-

tual, properly decided ‘in accordance with spplicable state

law. *

The petition, therefore, lacks substantial ground be-

cause it turns upon the: particular facts involved.

‘Sufficiency of evidence does not ordinarily ‘induce grant-

ing of a writ. (N. Y. Cent. R.-B. v. Kinney, 260 U. S. 340,

346 {1922].) ‘‘Granting of the writ would not be war-

ranted merely to review the evidence or inferences drawn

from it.’’? (General Pictures ‘Co. v. Electric Co., 304 U. S.

175,.178 [1938].) ‘‘The. ‘decision: of the highest court ofa

state on matters of state. law. in general conclusive

upon us, and ordinarily we accep ,and therefore do not

review, save in exceptional cases, the considered determi-

nation of questions of state law by the intermediate fed-

eral appellate courts * * *” | (Huddleston v. Dwyer, 322

U. S. 232, 237 Reread

eae oi » CONCLUSION

There are no eisai circumstances in this pone

warranting review by this Court. The petition should

be denied.

Respectfully cubsnitted,

Garr & Gan.

Attorneys for Respondent,

J. A. pane Manufacturing Co., Ine.

Bensamin H. Srrr,

Of Counsel.

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