110 Misc. 334 | N.Y. App. Term. | 1920
The plaintiff purchased from a department store a package containing a bottle of “ Pana Straw La,” a preparation used for the cleaning and dyeing of straw hats, manufactured and sold to the store by the defendant. Upon arriving at home, she unwrapped the package and read the directions as to its use. Holding it in her hand, and before removing the cork, she suddenly heard a sound, the bottle broke, and the liquid splashed in all directions, injuring her eyes, hair and clothing, and destroying certain household effects. The buyer of the store testified that she bought the articles from the defendant, and placed them on the counters for sale in the same condition as received, and on some occasions customers had taken the bottles from the unsealed packages in which they were contained, but she had never seen one uncorked by them in the store. Those not sold in one season were kept over to the next for sale. The plaintiff produced the remains of the bottle with the cork unfastened on the trial, stating the cork had never been touched by her. .
If the bottle exploded as plaintiff relates, it is manifest that the cause of the explosion does not definitely appear. There is no proof that this particular bottle was in any way peculiarly defective in construction, nor that it was cracked, broken, or improperly filled. Evidence is entirely lacking of any deteriorative or chemical change of the contents at the time of the alleged explosion from its character when manufactured, by reason of temperature or any manner in which it' was kept, or that the defendant knew or should have known that any deterioration would take
We hold that the plaintiff in failing to affirmatively show the existence of some defect in preparation, construction or condition of this article which the defendant knew or should, in the exercise of reasonable care, have known, would render the bottle “ not merely possibly, but probably dangerous,” as Cardozo, J., points out in MacPherson v. Buick Motor Co., 217 N. Y. 382, has failed in her proof. To fasten liability upon this defendant, it was incumbent upon her to show what the defendant’s lack of care and omission under the circumstances was; in other words, both that it was a defect and how it might and ought to have been discovered by him. Nor is there any force in respondent’s contention strenuously urged upon this appeal that the defendant failed in his duty to inspect the bottles before filling them, this for the reason that there is no proof that any examination or inspection would have found the existence of any defect. If such had been the case, it was the plaintiff’s duty to give evidence thereof. Bruckel v. Milhau’s Son, 116 App. Div. 836. In the absence of such evidence, the learned trial justice had no foundation upon which to predicate any. finding of negligence on
Judgment reversed and complaint dismissed, with thirty dollars costs in this court and costs in the court below.
Guy and Bijur, JJ., concur.
Judgment reversed, with thirty dollars costs.