Plаintiff purchased, at a retail store, a pound of butter manufactured by defendant creamery. Having eaten some of it, she brought an action clаiming fragments of *432 glass therein had caused her physical injury and mental anguish. The complaint contained her claims in several counts. The trial court submitted the claim to a jury on the issue of negligence. There was a verdict for plaintiff; defendant appeals from the judgment thereon.
Defendant made а motion for a new trial or for judgment n. o. v. which was denied. Defendant's argument in sum, is the court erred in not directing a verdict for defendant because of the insuffiсiency of the evidence and its inherent incredibility and improbability.
This court in 1940 reviewed the different theories on which recovery has been allowed in fоod product cases as between a manufacturer and the consumer in the absence of direct contractual relations. As between liability for implied warranty and negligence the court concluded liability on the negligence theory as the better reasoning, Whitehorn v. Nash-Finch Co.,
Viewing the evidence in that posture, it appears рlaintiff purchased the butter at a retail store from a case where it was .replenished daily by defendant's route man; plaintiff, as other customers rеgularly did, served herself from the case and paid :for it with other purchases at the checkout counter. The butter was wrapped in defendant's labеl and it makes no claim the butter was not processed by it. On arriving home, plaintiff commenced preparations of a meal for herself and a guest who was present. She cut off a portion of the butter and placed it on the table. She then cut off a chunk and ate it; her tongue started to burn; she testified she told the guest "I believe I have cut my tongue" and "my tongue was bleeding, and my lips started bleeding." She then found glass and particles of dirt in the butter. *433 After trying to cаll the creamery, she notified them the next day. Two creamery agents came with a health inspector to observe the butter and X-rays were taken of it. Plaintiff consulted a doctor and a few days later she removed a glass splinter from her lip. Plaintiff's supper guest generally confirmed her version оf the mealtime occurrence. The inspector, an unwilling, if not hostile, witness and creamery agents admitted glass was in the butter and that plaintiff tried to show thеm her cut lip, but they couldn't see it. Because defendant stresses the incredibility of defendant's version of the testimony and the apparent conflict with certain experiments introduced in defense, one item of evidence is referred to at this point. Defendant claims the evidence shows the glass to be in a vertióle plane along the edge of the cut in the butter, and there only, and therefore this would be incredible. But a doctor of medicine cоnsulted by plaintiff, testified he X-rayed the butter and from the X-rays it had "particles of foreign material in it, or opaque material suggestive of glass * * * all through it." The X-rаys in evidence support this conclusion. He also testified plaintiff had a small puncture wound or small chronic ulceration in the inner aspect оf her lower lip; that in his opinion she had an injury such as described by her.
This evidence was sufficient to -support the verdict and we cannot say, as defendаnt asserts, that it is inherently incredible and improbable. Other courts have approved verdicts on similar evidence. Coca-Cola Bottling Co. v. Reeves,
Defendant introduced photographs of its creamery and machinery as well as testimony showing methods of making butter. An expert witness performed an experiment by adding aluminum filings to the butter just before it entered a machinе known as a "former" and wrapping receptacle, the last place foreign matter could enter the finished product. He testified the augers which forced the butter into the machine mixed the butter and fil *434 ings with the result they appeared distributed throughout thirty pounds of butter; that in his opinion it was inconceivable that the glass show up — a very great majority of it — in one thin vertical layer.
Without reference to the province of the jury to balance and еvaluate the testimony of interested parties or their employees, cf. Jerke v. Delmont State Bank,
That no other person has made claims of food poisoning from eating canned foods over a two-year period is not such evidence to show due care or that defеndant was not negligent, as a matter of law. Stokely-Van Camp, Inc. v. Ferguson,
Defendant further argues liability was imposed on the theory it is an insurer of its product. That was not the theory on which the trial court instructed the jury. The instruction, not here challenged, required the jury to be satisfied by a preponderance of the evidence that defendant was negligent. As said of another
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phase of business by Chief Judge Cardozo in Ryan v. Progressive Grocery Stores,
Plaintiff has cross-appealed; to be еntitled to do so plaintiff must be aggrieved by the judgment. Carlson v. West River Oil Co.,
The judgment appealed from is affirmed in No. 10062 and in No. 10067 the appeal is dismissed.