302 Mass. 429 | Mass. | 1939
This is an action of contract for breach of warranty of fitness of food sold by the defendant to the plaintiff. At the close of the evidence the defendant filed a motion for a directed verdict in its favor. The motion was denied, subject to the defendant's exception, and the
The evidence in its aspect most favorable to the plaintiff may be summarized as follows: On September 16, 1933, “between 3:30 and 3:45 p.m.,” the plaintiff accompanied by her son “went into the cafeteria of the defendant.” When seated she ordered chop suey. Noodles are customarily served with chop suey, but since the cafeteria was “out of noodles,” the plaintiff received in lieu of the noodles an “extra helping” of chop suey. The order served her consisted of about ten tablespoonfuls of which she ate seven. After eating the chop suey she experienced no ill effects, but on her way home “it felt like grease coming up in her throat,” and at “about 5:30 she got a terrible headache and cramps, took an alkaseltzer” and reclined for a while. She arose and felt all right except for “grease coming up in her throat,” until about 11 p.m. when she went to bed. At about 1:45 the next morning she vomited and “had diarrhea.” At 11 a.m. a physician visited her. He made a diagnosis of ptomaine poisoning but testified that in the light of his examination of the plaintiff and the history that he received from her, eating chop suey and becoming sick thereafter would not be adequate cause for the condition found by him. He further testified that overeating would not cause the symptoms that he found to the extent that he found them, that ptomaine poisoning is the result of putrefaction of food, that “decomposition or putrefaction of food which causes the poisoning invariably has a stench”; that he had received no history from the plaintiff “of her eating any putrefied food” “aside from what the plaintiff had told him of eating tea and toast in the morning and chop suey about four o’clock in the afternoon.” He also testified that “the period of incubation is the period from the time
The burden of proving that her illness was due to unwholesomeness of the chop suey was an affirmative one resting on the plaintiff which could not be left to surmise, conjecture or imagination. While she was not bound to exclude every other possibility of cause for her illness, she was required to show by. the evidence a greater likelihood that her illness resulted from unfitness or unwholesomeness of the food served to her by the defendant, rather than from a cause for which the defendant would not be liable. Rocha v. Alber, ante, 155, 157, and cases cited. We are of opinion that the evidence most favorable to the plaintiff did not afford a basis for more than a conjecture that her illness was due to an unfit condition of the chop suey. There was no evidence to show what other food the plaintiff may have partaken of during the period testified to by the physician as the one of probable incubation in cases of ptomaine poisoning, except that the plaintiff’s breakfast on the day involved had consisted of toast and tea. What she may have eaten between that time and the time when she ate the chop suey was left to conjecture. There was no evidence that the food “tasted bad,” or that
Exceptions sustained.
Judgment for the defendant.