While I concur in the opinion of Mr. Justice Hubbs, I also find the verdict unsupported by the evidence in the light of a charge made *451by the learned trial justice in response to a request of the counsel for the defendant General Electric Company. The request is as follows: “ I ask the Court to charge the jury that if the Niagara Falls Power Co. should have tested the primary coils of this transformer before putting it in service, to see that it was all right, and if a proper test of such primary coils would have disclosed the blocks, or if the Niagara Falls Power Co. should have tested the entire installation at the tower at North Tonawanda after it was installed, before letting loose all of this power at that tower, and they failed to do so, then the Niagara Falls Power Co. would be liable and the General Electric Co. would not be.” The Court: “ If such failure was the cause of the trouble.” Counsel for the defendant General Electric Company: “ If by such tests they would have discovered the presence of these blocks.” The Court: “ I so charge.”
As I read the record, the only evidence of negligence on the part of the defendant Niagara Falls Power Company was first, the failure to test the transformers before connecting them in the electric circuits at the Tonawanda power house, and second, the failure to turn on the power slowly so the defects would become apparent before the full amount of power was permitted to pass through the circuits at the Tonawanda power house. The plaintiff contended that either of these tests would have disclosed the presence of the blocks in the transformers and would, therefore, have prevented any accident happening as a result of the presence of the packing blocks in the transformers.
The jury found a verdict against both of the defendants which, of course, was a finding that the defendant Niagara Falls Power Company was negligent in one of the respects mentioned, and under the charge of the court in such case the jury was directed to find a verdict in favor of the defendant General Electric Company. I, therefore, deem the verdict inconsistent with the charge mentioned and favor sustaining the order setting aside the verdict on this ground also.
The charge referred to is, however, in my opinion erroneous. It was still possible for the act of the General Electric Company in sending out the transformers with the packing blocks in the bottom of the cases without informing the Niagara Falls Power Company, the purchaser, of the blocks by adequate notice, to be held the proximate cause of the fearful calamity out of which this action arises, even though the defendant Niagara Falls Power Company was also negligent in failing to discover the presence of the bkjj»'' by proper test and experimental operation. The questioj^H^’ proximate cause may be stated thus: Would a reasonably pn^Rt *452man anticipate the danger of putting these transformers in service without the removal of the blocks? Whether or not there might be intervening negligence should be immaterial if the danger even though resulting from negligence ought to have been anticipated.
In MacPherson v. Buick Motor Company (217 N. Y. 382) a somewhat similar question was left open, Judge Cardozo (at p. 390) saying: “ We are dealing now with the liability of the manufacturer of the finished product, who puts it on the market to be used without inspection by his customers. If he is negligent, where danger is to be foreseen, a liability will follow. We are not required at this time to say that it is legitimate to go back of the manufacturer of the finished product and hold the manufacturers of the component parts. To make their negligence a cause of imminent danger, an independent cause must often intervene; the manufacturer of the finished product must also fail in his duty of inspection. It may be that in those circumstances the negligence of the earlier members of the series is too remote to constitute, as to the ultimate user, an actionable wrong (Beven on Negligence [3d ed.], 50, 51, 54; Wharton on Negligence [2d ed.], § 134; Leeds v. N. Y. Tel. Co., 178 N. Y. 118; Sweet v. Perkins, 196 N. Y. 482; Hayes v. Hyde Park, 153 Mass. 514, 516). We leave that question open. We shall have to deal with it when it arises. The difficulty which it suggests is not present in this case.”
While we are not dealing here with the negligence of the manufacturer of component parts, we are dealing with the negligence of a manufacturer taken together with the negligence of the purchaser in failing to inspect and discover.
In Wanamaker v. Otis Elevator Co. (228 N. Y. 192) the defendant had installed for the plaintiff a passenger elevator wrongfully designed, constructed and installed. Previous to the bringing of the Wanamaker action, an action had been brought by one Rumetsch, who was injured by the fall of the elevator. In the Rumetsch case (Rumetsch v. Wanamaker, New York, Inc., 216 N. Y. 379) a recovery was had against Wanamaker upon the theory of negligence in failing to discover the defects by inspection. Rumetsch having recovered a verdict against Wanamaker, the action of Wanamaker v. Otis Elevator Co. was brought for reimbursement of the amount paid to Rumetsch as a result of the former action, and the court held that reimbursement could be had by Wanamaker notwithstanding Wanamaker’s independent and subsequent fault. That case, therefore, establishes the proposition that a manufacturer's «ence in furnishing a defective, dangerous article is a proximate of injury to a third person even though the buyer was also ent in failing to discover the defect. (See, also, Fulton County *453Gas & Elec. Co. v. Hudson River Tel. Co., 200 N. Y. 287; Koplan v. Boston Gas Light Co., 177 Mass. 15; Burrows v. March Gas Co., L. R. 5 Ex. 67; Clerk & Lindsell’s Law of Torts [6th ed.], 154, and English cases there cited.) The authorities are not in full accord. Fowles v. Briggs (116 Mich. 425); Missouri, Kansas & Texas R. Co. v. Merrill (65 Kan. 436) and Carter v. Towne (103 Mass. 507) are all cases the opinions in which seem to point to a different conclusion. The authoiities in this State, however, warrant the conclusion that the principle of the MacPherson Case (supra) should be applied where the danger should reasonably have been foreseen.
Order affirmed, without costs, upon questions of law only, the court having examined all the facts and found no error therein. The alternative provisions of the order are stricken out. Settle order before Hubbs, J., on five days’ notice.