(dissenting as to Sexauer and concurring as to Diamond):
I believe the majority’s affirmance of the dismissal of the complaint with respect to defendant Sexauer unwarrantably deprives the plaintiff of his right to a jury trial.
To have his case against Sexauer submitted to a jury, Stief was merely required to present evidence sufficient to warrant a finding that his serious injury was caused by a property of Mule Kick of which Sexauer knew or ought to have known and against which it should have warned. The majority opinion, as I understand it, rests on the basis that he did not present sufficient evidence to show what the cause of the accident was and that it would therefore have been impossible for Sexauer to have prepared a warning that would have prevented the catastrophe. This view rests on too formalistic an approach to the evidence, particularly in the light of the established rule that in determining whether evidence is sufficient to take a case to a jury, all reasonable inferences must be drawn in plaintiff’s favor.
On the issue of causation we start with three undisputed facts: At temperatures of 125° Fahrenheit and above a combination of sodium hydroxide and zinc will generate hydrogen gas; there was zinc in the galvanized elbow of the pipe as well as in the clogged material; and, when the liquid escaped from the pipe, there was an explosion the propulsive force of which carried the liquid to the ceiling of the pantry and to a wall eight feet away. These facts alone might suffice to warrant a finding that the generation of hydrogen gas from the reaction of sodium hydroxide with zinc at a high temperature caused the accident. Since the only alternative explanation offered by Sexauer, of a free fall of liquid caused by the melting of the ice, failed to account for the wide spread of the liquid through the pantry, the jury would have been justified in accepting plaintiff’s theory. As Judge Medina has recently said, “But there are cases where common sense is more reliable than any amount of expert witnesses, and this is one of those cases.” Achilles v. New England Tree Expert Co., 369 F.2d 72, 73 (2 Cir. 1966).
*463However, the proof went considerably beyond this. Dr. Mary Willard, Professor Emeritus of 'Chemistry at Pennsylvania State University, testified that in her opinion the accident was caused by the production of hydrogen from the combination of zinc with the heated solution of sodium hydroxide. She thought that the production of hydrogen above the stoppage forced the stoppage down through the pipe past the clean-out hole and that this pressure expelled the plug and the caustic solution through the hole. Another theory, consistent with a statement by Stief in applying for workmen’s compensation benefits although in conflict with his trial testimony, is that there were two stoppages, one of ice above the plug and another of grease and debris below; that the melting of the ice by the torch caused some of the Mule Kick solution to fall through the pipe past the clean-out hole where it was stopped by the second blockage; and that the reaction of the Mule Kick with zinc in the pipe at the high temperature created by the torch produced hydrogen, which expelled the plug and caused the mixture to spurt through the hole. When Sexauer challenged these theories by asserting that if hydrogen had been formed, it would have bubbled up and been seen by Stief when he ascended to the second floor and put the snake down the pipe, Dr. Willard responded that the gas would have been held down by the long column of liquid in the pipe. Whether this was implausible, as Sexauer claims, is precisely the kind of question that ought to be left for decision by a jury unless the implausibiiity is such that no rational mind could think otherwise. That was not the situation either as to the matter of bubbling or as to the other element stressed by the majority, the time between Stief’s application of the torch to the pipe and the explosion. I see no reason why, in the absence of contrary scientific evidence, the jury could not conclude that the application of the torch might have begun the hydrogen-forming reaction, and that this would have had to continue for five or ten minutes — the time it took Stief to get the snake, place it in the pipe on the second floor, and walk downstairs to the pantry — before enough hydrogen to cause the explosion could have been formed. Not only was there no such evidence, but defendant’s expert testified that at 125° F. zinc would react with sodium hydroxide only “very slowly.” If twelve practical people can be persuaded that Stief’s theory of the accident was more plausible than Sexauer’s, I fail to understand how a judge could say they had gone beyond the bounds of reason.
Once this is admitted, the plaintiff was entitled to a jury’s consideration whether the label was adequate in view of the hazard of the formation of hydrogen as a result of contact with zinc at a high temperature. Sexauer knew that sodium hydroxide involved this hazard, and it is common knowledge both that household plumbing frequently contains galvanized pipe and that galvanized pipe is coated with zinc. Under these circumstances a jury could rationally find that failure to warn of the hazard of utilizing Mule Kick in conjunction with galvanized pipe at a high temperature was negligent; indeed, defendant’s witness Springhorn, formerly -sales manager and at the time of trial assistant to the president of Sexauer, thought the label in fact contained a warning with respect to zinc, as it did with respect to aluminum. Moreover, the label was not merely deficient in warning against the application of heat, but worse than that; it instructed the user to dissolve Mule Kick in “boiling water” and to “flush with plenty of hot water,” and urged that it be used to thaw frozen pipes. Thus, there was not merely a lack of warning with respect to the dangers of contact between a heated solution containing Mule Kick and zinc but a positive indication of lack of danger from heating.
The majority argues against this that there is no evidence of previous experience of Mule Kick having generated sufficient hydrogen gas through contact with galvanized pipes to cause an expío*464sion. Of course, the absence of any evidence to this effect does not mean that no such incident had ever occurred. In any event the jury could find that since the hazard was known, Sexauer was under a duty to warn against it and certainly under a duty not to say things that would invite it. While the majority opinion cites many cases from other courts, it unaccountably neglects to refer to our own decision in Butler v. L. Sonneborn Sons, Inc., 296 F.2d 623, 626 (2 Cir. 1961), which is about as close in point as one tort case can be to another. There also a manufacturer contended that a long record of accident-free experience justified failure to give a warning. We rejected that contention, saying:
“But, especially when injury is likely to be serious if trouble occurs, even slight foreseeability may warrant, and a long history of good fortune will not necessarily exclude, a conclusion by the trier of the facts that prudence requires the manufacturer to take on so small an added burden.”
Depriving Stief of jury determination of the common sense questions on which his case .against Sexauer depends runs wholly counter to the trend of Supreme Court decisions over the past decades.
I concur in the affirmance as to Diamond although not on the ground relied on by the majority. The 400 pound drum in which Diamond sold caustic soda to commercial and industrial buyers for a. variety of uses bore a label reprinted in the margin.* Stief’s contention is not that this label was inadequate in the sense that it did not inform Sexauer of the danger that contact with zinc might result in the formation of hydrogen; since Sexauer knew all about this, any such deficiency in the label would have lacked sufficient causal relation to the accident. The claim is rather that Diamond was bound to see to it that Sex-auer’s label was adequate. Plaintiff relies heavily on Restatement (Second), Torts § 388 (1965) and particularly on the discussion of “Warnings given to third person” at pp. 307-10.
Most of the discussion, however, does not read directly on the instant situation where a manufacturer sells a raw material in large containers to many purchasers for a wide variety of uses and the particular purchaser has repacked it under his own name and label. Perhaps the only observations directly applicable are the scarcely decisive ones that “it is obviously impossible to state in advance any set of rules which will automatically determine in all cases whether one supplying a chattel for the use of others through a third person has satisfied his duty to those who are to use the chattel by informing the third person of the dangerous character of the chattel, or of the precautions which must be exercised in using it in order to make its use safe,” and that “modern life would be intolerable unless one were permitted to rely to a certain extent on others’ doing what they normally do, particularly if it is their duty to do so.” I am far from saying that circumstances could never arise in which a manufacturer like Diamond might be subjected to liability for inadequate labelling by an intermediary like Sexauer, as, for example, if it knew a packager who had purchased significant quantities of its caustic soda was putting this into the market with no warning whatever, or if the packager had submitted and obtained approval for a label that was highly misleading. But the facts here are at the opposite end of the spectrum from these hypotheticals.
Sexauer had been selling Mule Kick for thirty years under the same label but began purchasing caustic soda from *465Diamond only a little while before the injury to Stief. The record reveals nothing as to how important an outlet Sex-auer then became, and there is no evidence that Diamond had seen its catalog or periodical advertising. Although plaintiff claims there is evidence that Diamond had seen the label on the can, the testimony was highly equivocal and surely does not show that Diamond had seen the label before it sold the caustic soda that was repackaged into the cans used by Stief in January, 1961, or that if it had protested upon seeing the label, the accident would have been avoided. Moreover, although a jury could find the Sexauer label inadequate to discharge the duty of care of a distributor to the plumbing trade, it was not blatantly offensive or insufficient; the degree of foreseeability of danger and hence the amount of care required with respect to warning may vary somewhat inversely with a seller’s distance from the specific use and with the number of intermediaries. On the facts here presented, there would have been no rational basis for a jury’s concluding that Diamond had failed to exercise reasonable care with respect to the plaintiff.
“WARNING: CONTAINS CAUSTIC SODA. Burns skin and eyes. Avoid contact with body or clothing. Do not take internally. When handling wear goggles or face-shield and avoid all skin contact. While making solutions, add Caustic Soda slowly to surface to avoid violent spattering. In case of accidental skin contact, flush affected parts with water and wash with vinegar. For eyes, flush freely with water for at least 15 minutes. Obtain medical attention.”