Before HASTINGS, Chief Judge, and KNOCH and CASTLE, Circuit Judges.
Plaintiff brought this action to recover damages attendant on personal injury, in loss of the sight of one eye. Plaintiff charged that defendant, Vaughn & Bushnell Mfg. Co., hereinafter called "Vaughn", who manufactured "Craftsman" hammers, and defendant, Sears Roebuck & Co., hereinafter called "Sears", who sold these hammers under the trade name, as though they were manufactured by Sears, and who prepared specifications for and supervised their manufacture, both expressly and impliedly warranted the hammers to be so manufactured and fabricated as to be reasonably fit for the purposes for which such hammers were used and free of defects rendering them inherently or imminently dangerous. He charges that they breached said warranties; that one of two such hammers purchased by him in reliance on the warranties was manufactured from defective steel stock, as a result of which it became an inherently dangerous instrumentality because it was cracked, brittle, and liable to chip; that while plaintiff was using the hammer, in the exercise of ordinary care for his own safety, the hammer chipped, and a portion of it pierced his left eye, causing the injury of which he complains.
Plaintiff lists negligent acts of Vaughn as: carelessly and negligently manufacturing the hammer, failing to use good and proper steel therefor, fabricating it from "grossly segregated and defective steel stock," failing to test it properly, improperly tempering it in manufacture, and permitting it to be sold in defective condition.
Plaintiff lists negligent acts of Sears as: carelessly and negligently permitting the hammer to be improperly manufactured, permitting it to be manufactured of defective steel stock, failing to inspect it properly, failing to test it properly, selling it in a dangerous condition, and selling an inherently dangerous instrumentality.
In their answer, defendants denied making any of the alleged warranties, and asserted that plaintiff was guilty of contributory negligence, in excess of 50% of any negligent acts committed, as a proximate result of which he had sustained the alleged injuries.
The evidence showed that Vaughn manufactured the hammer in question and that Sears sold it by catalog in which it was described as follows:
"Perfect balance assures you of a right 'feel' and easy swing. Has flared rubber tip for sure grip. Spaced claws grip from brads up to large nails. Double steel wedge locks head tight. Head polished; beveled face resists chipping. Head is drop forged from 'supertuff' steel, heat treated and hardened. Finest grade white hickory handle * * *."
The evidence shows no other representation made to plaintiff by either defendant.
Plaintiff testified that he was engaged in remodeling a frame structure, in Campbellsport, Wisconsin, on his own time and for his own use. He was mounted on a scaffold composed of a plank laid across two ladders, attempting to remove and preserve for future use, a 1 x 4 inch board, fastened to the studding with one or two nails on each studding, about twelve feet above the floor. With his left hand, he placed the claws of one hammer up against one of the nail heads, and (in order to drive the claws of that hammer under the nail) he struck the striking face of that hammer with the striking face of the other hammer, held in his right hand. At the second blow, he felt an object enter his left eye. He then examined the hammers and saw that the striking face of the hammer in his right hand had chipped and that the chip was missing. X-rays showed a piece of metal lodged in the back of plaintiff's left eye socket near the optic nerve.
Plaintiff testified that while he was in the hospital he (and others) were laid off by the Soo Line Railroad Company, his employer. When he was called back to work about four months later, he was discharged as being a safety hazard. He was subsequently turned down for other jobs for which he applied, but, at the time of trial, he had obtained employment as a mechanic.
The Trial Court required the jury to return a special verdict. Most of the alleged errors concern this special verdict. Plaintiff contends that the Trial Court erred (1) in failing to submit to the jury the respective issues regarding the several breaches of warranty, and the individual charges of negligence by Sears and Vaughn, as alleged in the complaint and as denied in the answer, (2) in submitting issues as to percentage of causal negligence attributable to each defendant (instead of to both together), (3) in submitting the issue of contributory negligence on the part of plaintiff, it being plaintiff's position that there was no evidence at all of any contributory negligence by him, (4) in instructing the jury so as to increase the burden of proof beyond that required by law with respect to preponderance of evidence, and (5) in failing to instruct regarding res ipsa loquitur. Thus plaintiff lists the contested issues as:
"1. Whether the special verdict which the trial court required the jury to return conformed to the requirements of Rule 49 of the Rules of Civil Procedure, 28 U.S.C.A.
"2. Whether the answers to the questions propounded in the special verdict were responsive to the ...