322 Mass. 456 | Mass. | 1948
This is an action of contract or tort to recover compensation for personal injuries sustained by the plaintiff when a bottle of coca cola, which she had purchased from an automatic vending machine owned and operated by the defendant, broke while in her hand. The declaration is in two counts, the first being in contract based on breach of implied warranty under the sales act. G. L. (Ter. Ed.) c. 106. The second count alleges
The jury would have been warranted in finding the following facts: On October 29, 1943, the plaintiff purchased a bottle of coca cola from an automatic vending machine owned and operated by the defendant in the room of a factory in Lowell where the plaintiff was employed. No one other than the defendant through its agents or servants had anything to . do with the loading of the machine with bottles of coca cola, the taking out of the coins deposited in the machine, or its maintenance. The key to the machine was in the exclusive control of the defendant. Upon the deposit of a five cent piece, a mechanism is released and a bottle of coca cola slides from an inside cradle into a chute, approximately six to seven inches long, partly made of metal, and down the chute, striking the bottom of the chute, which is made of rubber. The defendant does not make but purchases the coca cola syrup and the bottles. The bottles are made entirely of glass. At times employees of the defendant who were delivering coca cola for use in the machine had been seen placing cases of coca cola one on top of another. The approximate weight of each case is thirty-eight pounds. One case placed on another would come in contact with the caps or crowns of the bottles in the lower case. The machine is inspected by the defendant’s servants at irregular intervals, which may be as far apart as a year. The plaintiff having deposited a five cent piece in the machine, a bottle of coca cola came down the chute. She had her lunch in her right hand, picked up the bottle in her left hand, proceeded to a room which was about fifteen or twenty feet from the machine, and sat down there with three coworkers. Obtaining an opener from one of them she held it in her right hand; “without touching it to the bottle which was still in her left hand, she made a
The defendant has argued that there is no evidence of any negligence on the part of the defendant with respect to the bottling process, or to indicate that the vending machine was defective, or to show that the bottle in question had been damaged by being in a case upon which another case of coca cola had been superimposed; that the evidence discloses that the bottle was in the sole possession and control of the plaintiff when it broke; and that the cause of the breaking was purely a matter of surmise or conjecture.
The plaintiff had the burden of proving that the accident was caused by negligence of the defendant. This was an affirmative burden and could not be left to surmise, conjecture or imagination. The plaintiff, however, was not bound to exclude every possible cause for her injuries other than that of negligence of the defendant, and was only required to show by-a preponderance of the evidence a greater likelihood that her injuries resulted from an act of negligence for which the defendant is responsible rather than from a cause foT whiHUhTUhot liable. Rocha v. Alber, 302 Mass. 155, 157-158. Sargent v. Massachusetts Accident Co. 307 Mass. 246, 250-251. Flynn v. Growers Outlet, Inc. 307 Mass. 373, 377. Mucha v. Northeastern Crushed Stone Co. Inc. 307 Mass. 592, 596. Upon the facts disclosed by the evidence, however, we are of opinion that the jury could not have inferred properly that the plaintiff’s injuries were caused bv negligence of the defendant.
There was no evidence m the present case to warrant a finding that the contents of the bottle had been too highly charged with carbonic gas, the evidence being simply that it broke in the plaintiff’s hand, that while holding it she looked at her hand and saw-"that it was covered with blood, and that the bottom of the bottle dropped into her lap. There
At best the evidence in the present case deft the cause of the breaking of the bottle to mere coniecturammsurrmse. and was therefore insufficient to permit the case to be submitted to the jury on the "counFfornegligenner. Burnham v. Lincoln, 225 Mass. 408, 410. See Stewart v. Crystal Coca-Cola Bottling Co. 50 Ariz. 60; Loebig’s Guardian v. Coca-Cola Bottling Co. 259 Ky. 124; Stodder v. Coca-Cola Bottling Plants, Inc. 142 Maine, 139; Seven-Up Bottling Co. Inc. v. Gretes, 182 Va. 138.
It now becomes necessary to consider the plaintiff’s exception to the action of the judge in allowing the defendant’s motion for a directed verdict in its favor on the first count of the plaintiff’s declaration, which was in contract and was based on breach of an implied warranty under the sales act.
The defendant’s motion for a directed verdict was based on the pleadings and the evidence, and among other grounds set up that there “was no evidence that the plaintiff gave the defendant a sufficient notice
General Laws (Ter. Ed.) c. 106, § 38, provides in part that “if, after acceptance of the goods, the buyer fails to give notice to the seller of the breach of any promise or warranty within a reasonable time after the buyer knows, or ought to know of such breach, the seller shall not be liable therefor.”
The entry will be
Plaintiff’s exceptions overruled.
Defendant’s exceptions sustained.
Judgment for the defendant.
A collection of cases, some allowing recovery in circumstances somewhat similar to those in the present case, and others refusing recovery, will be found in Escola v. Coca Cola Bottling Co. of Fresno, 24 Cal. (2d) 453, 457.
In Poulos v. Coca-Cola Bottling Co. of Boston, ante, 386, the sole question was whether the evidence warranted a finding of breach of the implied warranty of merchantability under the sales act.