This is an action in tort to recover damages from James C. Davis, statutory agent of the United States, designated as such by the President in pursuance of the act of Congress approved February 28, 1920 (41 Stat. 461 [Comp. St. Ann. Supp. 1923, § 10071%cc]), for injuries which the plaintiff, Dora Bristow King, claims she sustained while a passenger on one of the trains of the Pennsylvania Railroad Company running between Washington and New York. At thе close of plaintiff’s testimony the trial court sustained a
In her declaratiоn Mrs. King averred that she, accompanied by her husband, on December 30, 1919, entered a dining car of the train on which she was traveling, and which was operated by the railroad company under the management of Davis, in response to a call made by the servants of the company, for the purpose of obtaining her luncheon. Different items of food, among them veal, were sеrved to, and eaten by, them. The veal, she said, was corrupt and unfit for human consumption, and after eating it she became nauseated'and violently ill from ptomaine poisoning, caused by thе meat. She alleged that the company, through its servants, knew, or should have known by the exercise of reasonable care, that the veal at the time it was served was unfit for human consumption, but that, notwithstanding'this, they intentionally and unlawfully served it, to the injury of the plaintiff, as just stated, and she asked for damages.
In passing on the motion for a directed verdict the learned justice went into the mattеr with great care. From his written opinion we learn that he sustained the motion on the ground that there was no proof that the defendant knew the food furnished to be tainted or unwholesome, and that to hold the defendant liable on the theory that it, by the exercise of ordinary care and prudence, could have discovered its condition before serving it, would be equivalent to saying thаt “the defendant was an insurer of the wholesome character of the food furnished.”
We cannot agree to the proposition that to hold the defendant negligent, if by the exercise оf reasonable care it should have known the condition of the meat, would make it an insurer of the character of the food supplied. If the defendant knew that the meat was contаminated, we think no one would say that it should not be held responsible for the consequent damages; but its failure to know does not excuse it, if the failure was due to want of reasonable carе in ascertaining the truth. A person may be held, not only for what hd knows, but also for what he would have known if he had exercised reasonable care in the premises. Market Co. v. Clagett, 19 App. D. C. 12, 26; Brown v. Sаvings Bank, 67 N. H. 549,
Plaintiff called as a witness Dr. Ashworth, who stated that he had conducted a sanatorium for 18 years, and that it was a part of his responsibility аnd duty to purchase the foods and meats served there; that he had a large, roomy refrigérator for caring for the meat; and that he had made a study of the care, preservation, and sеndee of foods, especially meats. He said he had heard the testimony of Mrs. King
We recognize the rule that expert testimony is permissible only where the thing to which it relates is so far removed from ordinary human experience that a jury will presumably not possess thе skill or knowledge requisite to draw a proper inference from the facts, even if such facts could be ascertained. 22 C. J. 652; Lynch v. Larivee Lumber Co.,
After the court had sustained the objection, counsel did not make an offer of what he expected to prove by the interrogatory, and this, it is said, precludes appellant from having the ruling reviewed here. While it is the general rule that such an offer should be made, it is not necessary where the question is so framed as to clearly admit of an answer favorable to the claim .of the party propounding it. Buckstaff v. Russell,
It is urged by appellant that the doctrine of res ipsa loquitur should be apрlied in this case. That doctrine may be invoked only where the facts of the occurrence warrant the inference of negligence, and the pleader, because of the nature of the case, is not able to point out the specific act which caused the injury complained of. Moore v. Clagett, 48 App. D. C. 410, 415. But where, as here, the declaration alleges thе precise acts upon which the case is predicated, namely, the service of the veal with knowledge, actual or constructive, that it was unfit for human consumption, the doctrine has no application. The pleader knew the acts of negligence on which she’ relied, and she was required to prove them, or' some of them, without the aid of the pre
We perceive no sound reason why the railroad company should not he held liable to the appellant, if it negligently served to her tainted meat and thereby caused her injury. In Bishop v. Weber,
“The furnishing of provisions which endanger human life or health stands upon the same ground as the administering of improper medicines, frоm which a liability springs irrespective of any question of privity of contract between the parties.”
This language was quoted with approval in Tomlinson v. Armour & Co., 75 N. J. Law, 748, 760,
The cases brought before us by counsеl for the railroad company have been examined, and there is nothing in them which conflicts with what we have said. Want of space forbids a review of more than'a few. Besides, we think it unnecessary. In Valeri v. Pullman Co. (D. C.)
The case is reversed, with costs, and remanded, with directions to grant a new trial.
Reversed.