I agree that the standard of ordinary care is applicable in the case of the Elms Company, but I am unable to concur in the rule of absolute liability on the part of the Chemical Company. Instruction 10-A in effect told the jury that the latter company was negligent if it failed to discover by tests any possible harm that might result from the use of 2-4-D. Similarly, the majority hold that the manufacturer who puts a dangerous commodity on the market is responsible for the consequences of its use, no matter how unexpected or unforeseeable they may be.
I think the manufacturer's duty should be that of making such tests as are reasonably necessary in the circumstances — it being understood, of course, that the duty to take precautions increases proportionately with the degree of danger inherent in the commodity. It is shown that 2-4-D is harmless to narrow-leaved plants, but suppose for argument's sake that there is in the world one narrow-leaved plant that the dust will injure. Upon the majority's reasoning the Chemical Company would be liable for failing to test the dust on that particular plant, even though it may have made experiments with ten thousand other species. So as to the drifting quality of the chemical. The proof shows that many agricultural dusts have been widely used during a quarter of a century, yet none has ever before been known to drift more than a few rods. I think the jury should have the opportunity to decide whether the Chemical Company *Page 646 acted with ordinary prudence in assuming that 2-4-D would float in the same way as other dusts.
The Restatement of Torts, cited by the majority, follows the rule of reasonable care in situations analogous to this one (388, 397, 400, 519). I find no reason for bringing into our law the principle of absolute liability. Experience elsewhere has shown that this doctrine is hard to confine, once its existence has been recognized. We shall be asked to extend the scope of this case in the future, and I can hardly see the point at which its application may logically be said to end.