255 Mass. 553 | Mass. | 1926
As brought, this was an action in tort or contract to recover damages alleged to have been sustained by the plaintiff as a consequence of eating strawberry shortcake containing small particles of glass, served to her by the defendant or its agents or servants at one of its drug stores. The first count alleged in substance that the injury sustained ,by the plaintiff was suffered by reason of the “carelessness and negligence of the defendant, its agents or servants.” The second count alleged an implied warranty that the cake served was wholesome and fit to eat and the breach of that warranty. The answer was a general denial and contributory negligence. At the conclusion of the evidence, the plaintiff waived the count in contract and elected to rely on the first count for negligence. The defendant thereupon moved for a directed verdict in its favor. This motion was denied and the defendant duly excepted. The jury returned a verdict for the plaintiff, and the case is here on the defendant’s exception to the denial of its motion, and upon its exceptions
The material facts offered and received in support of the case of the plaintiff in substance are as follows: On a Saturday the plaintiff and her husband entered the drug store of the defendant and purchased checks of the cashier, and at the counter the plaintiff ordered strawberry shortcake from the clerk. The strawberries and cream were in dishes in back of the clerk, who, when he received the order, turned around and made the shortcake right there, putting a layer of cake on the plate, then a layer of crushed strawberries, and then a layer of cream. The strawberries were fresh strawberries that had been crushed and were contained in one bowl, and the whipped cream was in another bowl. After the strawberry shortcakes were made up by the clerk, he passed one to the plaintiff and one to her husband. She took a spoonful of cream and strawberries from the top of the shortcake, but no cake, and put it in her mouth, and started to eat it. At the very first spoonful she felt some glass or some substance, she instantly felt something sharp, as she rolled it around in her mouth, like the point of a pin, and she swallowed it; she could not resist it going down. Her mouth and tongue were cut to such an extent they bled for two hours. When she felt the cuts she took a piece of glass out of her mouth and “hollered, ‘There is glass in it,’” and spat it out. She then took pieces of glass from her mouth, “one pretty large piece,” and a number of smaller pieces. She showed the “little square piece to the clerk and to her husband and put the other little piece on her plate.” Under treatment by her physician, the piece of glass which she had swallowed was evacuated five days later. This piece of glass was Y shaped, about a quarter of an inch long on its longest sides and was very thin, and very much like an ordinary wine glass.
The-defendant introduced no testimony. Through answers to interrogatories propounded to the defendant by the plaintiff it appeared that the cream, the strawberries and the cake were purchased by the defendant of dealers in such articles, and, if the evidence shown by the answers were believed, it could have been found that the defendant exercised
Putting to one side the evidence for the defendant deducible from its answers to the interrogatories, the question for decision is, Does the mere fact of the presence of small particles of glass in strawberries and cream offered for consumption by the defendant establish a prima facie case of negligence by the defendant in the examination of the strawberries and cream when they were received or while they were being prepared for food and offered to the plaintiff for her consumption? There is nothing in the record to show the source of the glass which injured the plaintiff or to warrant an inference that the harm to the plaintiff resulted from any failure of duty on the part of the defendant. The decision in this case is governed by Ash v. Childs Dining Hall Co., supra, and does not fall within the class'of cases of which Tonsman v. Greenglass, 248 Mass. 275, Richenbacher v. California Packing Corp. 250 Mass. 198, and Sullivan v. Manhattan Market Co. 251 Mass. 395, are examples.
Exceptions sustained.