Perry v. Kelford Coca-Cola Bottling Co.
145 S.E. 14
N.C.
1928
Check Treatment
Beogden, J.

The question of law is this: Upon the trial of an action for damages for personal injury caused by shivered glass in a bottle of coca-cola, is it competent upon the question of negligence to show that foreign substances were found in other bottles of beverage bottled and sold by the defendant “at about the same time” plaintiff was injured?

The rule of law governing the liability of the manufacturer of foods and beverages to a consumer, for injury occasioned by deleterious and harmful substance contained in such beverage, is clearly stated in Crigger v. Coca-Cola Bottling Co., 179 S. W., 155. The Supreme Cotirt of Tennessee in that case said: “From a careful consideration of the subject, and after mature thought, we are of the opinion as follows: 1. That one who prepares and puts on the market, in bottles or sealed packages, foods, drugs, beverages, medicines, or articles inherently dangerous owes a high duty to the public, in the care and preparation of such commodities, and that a liability will exist regardless of privity of contract to any one injured for a failure to properly safeguard and perform that duty. 2. This liability is based on an omission of duty or an act of negligence, and the way should be left open for the innocent to escape. However exacting the duty or high the degree of care to furnish pure food, beverages and medicines, we believe with Qooley, J., as expressed in Brown v. Marshall, supra, that negligence is a necessary element in the right of action, and the better authorities have not gone so far as to dispense with actual negligence as a prerequisite to the lia *177 bility. In fact, there is no logical basis o£ liability for personal injury without some negligent act or omission.” The authorities upon the subject are contained in the following cases: Davis v. Van Camp Packing Co., 176 N. W., 382, 17 A. L. R., 649; Birmingham Chero-Cola Bottling Co. v. Clark, 89 Southern, 64, 17 A. L. R., 667; Windram Mfg. Co. v. Boston Blacking Co., 131 N. E., 454; 17 A. L. R., 669; Dail v. Taylor, 151 N. C., 284, 65 S. E., 1101, 66 S. E., 135; Ward v. Sea Food Co., 171 N. C., 33; 87 S. E., 958; Cashwell v. Bottling Co., 174 N. C., 324, 93 S. E., 901; Grant v. Battling Co., 176 N. C., 256, 97 S. E. 27, Lamb v. Boyles, 192 N. C., 542, 135 S. E., 464; Gill v. Lunch System, 194 N. C., 803, 139 S. E., 925.

As the cause of action is ordinarily based upon negligence, how can the negligent act or omission establishing liability be proved ? It is settled law in this jurisdiction that the principle of res ipsa loquitur does nqt apply to personal injury occasioned by bursting bottles or .from "eating food alleged to be unwholesome, or for partaking of a bottled beverage when there is no evidence tending to show negligence in the preparation of the food or beverage and no deleterious or harmful substance is found therein. Dail v. Taylor; Cashwell v. Bottling Co.; Lamb v. Boyles. However, negligence may be inferred from relevant and pertinent acts and circumstances. Thus, in Fitzgerald v. R. R., 141 N. C., 530, 57 S. E., 219, it was held that: “Direct evidence of negligence is not required, but the same may be inferred from acts .and attendant circumstances ; and if the faets proved establish the more reasonable probability that the defendant has been guilty of actionable negligence, the case cannot be withdrawn from the jury, though the possibility of accident may arise on the evidence.”

The evidence offered by the defendant in the case at bar tended to show that the defendant operates a modern and up-to-date plant, but the plaintiff attempted to show that the defendant had placed upon the market “at about the time plaintiff was injured” bottles of coca-cola that contained foreign substances. This was a relevant circumstance upon the issue of negligence to be considered by the jury together with all the other evidence in the ease. In both the Dail and Gashwell cases, involving injury from the explosion of a bottle, this Court held that it was competent to show the explosion of other bottles, placed upon the market by the defendant, upon the question of negligence, and no sound reason occurs to us why the plaintiff should not be entitled to show as a circumstance to be considered by the jury that other bottles of the beverage manufactured and sold by the defendant “at about the same time” plaintiff was injured, contained harmful substances.

In Lamb v. Boyles, supra, “the testimony offered by the plaintifE as to other alleged acts of negligence on the part of the defendant was held *178 not to be admissible as substantive evidence on tbe first issue and as sucb it was accordingly excluded.” It will be observed, however, that there was no evidence of any foreign matter contained in the ale which the plaintiff drank. Negligence is not presumed from the fact of injury alone in such cases, and as it appeared in that ease that no deleterious or harmful ingredient or substance was found in the beverage it followed as a logical conclusion that negligence could not be inferred in the absence of such proof. The fact that other bottles might have contained harmful substances was obviously no proof that the bottle furnished to the plaintiff contained any harmful or injurious substance.

Affirmed.