Opinion
January 27, 1928.
Robert H. Rosenthal, for the plaintiff.
Wise, Whitney Parker [ Francis C. Lowthrop of counsel], for the defendant.
Plaintiff's complaint says that defendant is the manufacturer of a product known as Kotex, which it sold to a druggist, who in turn sold it to her. She says that defendant so carelessly and negligently manufactured, handled, and packed that sanitary napkin that a large manifold pin was permitted to be concealed in the package, as a result of which she was injured. Defendant says that all that does not state a cause of action, and moves to dismiss the complaint, relying upon Hasbrouck v. Armour Co. ( 139 Wis. 357). I find that that case has been distinguished ( Garvey v. Namm, 136 A.D. 815) but never approved by the courts of this State. Field v. Empire Case Goods Co. (179 315 A.D. 253), though not mentioning the Hasbrouck case, may be said to follow the principle there laid down, although the case did not deal with an article inherently and imminently dangerous. The manifold pin so placed, in an article to be used on the human body, could in all probability cause injury, and was, therefore, inherently and imminently dangerous. So that there is a clear distinction between the Field case and the case at bar. At all events, after the decision of MacPherson v. Buick Motor Co. ( 217 N.Y. 382) it could no longer be said that the Hasbrouck case is decisive at bar. It was there said by Judge CARDOZO that, while subtle distinctions might be drawn between things inherently dangerous and things imminently dangerous, a case may not go upon such verbal niceties. The true test is, as the judge points out: "If danger was to be expected as reasonably certain, there was a duty of vigilance, and this whether you call the danger inherent or imminent." If it be true that defendant negligently permitted a large manifold pin to be concealed in a Kotex pad, and for that reason plaintiff was injured about her body, a jury might well award her damages. The motion to dismiss the complaint must be denied, with ten dollars costs.