183 S.E. 748 | N.C. | 1936
Lead Opinion
This is an action to recover damages for personal injury alleged to have been caused by tbe negligence of tbe defendant in allowing minute particles of glass to get into sausage sold by it for public food consumption.
Erom a judgment based upon tbe verdict tbe defendant appealed and assigned as error tbe action of tbe court in refusing to grant its motion for judgment as of nonsuit made upon tbe plaintiff's resting bis evidence and renewed at tbe close of all tbe evidence. G. S., 567.
There was evidence tending to show tbat on or about 15 June, 1935, tbe plaintiff purchased from L. A. Truebloód & Company about one and one-balf pounds of sausage which bad been packed and sold for food consumption to Trueblood & Company by tbe defendant Swift & Company, and tbat after tbe sausage was eaten by tbe plaintiff it was found to have contained small particles of glass, some of which tbe plaintiff swallowed, resulting in bis painful and serious damage. There was further evidence tending to show tbat within two or three weeks prior to tbis occasion tbe plaintiff bad found “grit” in similar sausage purchased by him from tbe same source which bad likewise been manufactured and sold for food consumption by tbe defendant. Tbe evidence also tended to show tbat tbe sausage, when manufactured, was stuffed into “sheep casings,” and tbat when purchased no grit was found on tbe outside thereof.
In the trial of the case in the Superior Court we find
No error.
Lead Opinion
STACY, C. J., dissenting.
CONNOR, J., concurs in dissent. This is an action to recover damages for personal injury alleged to have been caused by the negligence of the defendant in allowing minute particles of glass to get into sausage sold by it for public food consumption.
From a judgment based upon the verdict the defendant appealed and assigned as error the action of the court in refusing to grant its motion for judgment as of nonsuit made upon the plaintiff's resting his evidence and renewed at the close of all the evidence. C. S., 567.
There was evidence tending to show that on or about 15 June, 1935, the plaintiff purchased from L. A. Trueblood Company about one and one-half pounds of sausage which had been packed and sold for food consumption to Trueblood Company by the defendant Swift Company, and that after the sausage was eaten by the plaintiff it was found to have contained small particles of glass, some of which the plaintiff swallowed, resulting in his painful and serious damage. There was further evidence tending to show that within two or three weeks prior to this occasion the plaintiff had found "grit" in similar sausage purchased by him from the same source which had likewise been manufactured and sold for food consumption by the defendant. The evidence also tended to show that the sausage, when manufactured, was stuffed into "sheep casings," and that when purchased no grit was found on the outside thereof. *568
We think this evidence brings the case within the principle enunciated in Hampton v. Bottling Co.,
In the trial of the case in the Superior Court we find
No error.
Dissenting Opinion
dissenting: The record is devoid of any evidence of actionable negligence on the part of the defendant, according to our previous decisions. Thomason v. Ballard & Ballard Co., 208 N. C., 1, 179 S. E., 30; Blackwell v. Bottling Co., 208 N. C., 751; Enloe v. Bottling Co., 208 N. C., 305, 180 S. E., 582.
“The facts present a case where it would be entirely unsafe to permit the application of the principle contended for (res ipsa loquitur), or to hold that the explosion of one single bottle of such an article (Coca-Cola), under such circumstances, should of itself rise to the dignity of legal evidence sufficient, without more, to carry the case to the jury”— Hoke, J., in Dail v. Taylor, 151 N. C., 284, 66 S. E., 135.
Here we have only one instance of deleterious substance (glass) found in sausage, and another instance of “grit” found therein. By grit the witness may have meant no more than gristle or particles of bone. Nor does it appear whether this “grit” was in the original package. Indeed, it may be doubted whether the particles of glass were found in the original package, though the evidence may be sufficient to warrant the inference.
Having decided in Thomason v. Ballard & Ballard Co., supra, that plaintiff is not entitled to recover, e¡x contractu, as upon an implied warranty, the pertinent decisions in cases sounding in tort should be followed.
