227 S.W. 631 | Mo. Ct. App. | 1921
Lead Opinion
With the permission of and at the invitation of defendant, plaintiff went upon a tour of inspection of defendant's plant, where it manufactures a non-intoxicating beverage called Bevo. While thus engaged plaintiff received injuries by reason of the explosion of a bottle of Bevo, and on account thereof she recovered a judgment for $1,000, from which defendant has appealed.
Two questions are presented: namely, (1) whether the facts warrant the application of the doctrine of res ipsa loquitur; and (2) whether the verdict and judgment are excessive.
The charge was general negligence, and plaintiff relies entirely upon the application of the doctrine of presumptive negligence to the facts in evidence. The jury were instructed that if they believed from the evidence that whilst plaintiff was in the plant, a bottle filled with liquid, which was being handled by one of defendant's servants, exploded and a piece of glass struck and injured plaintiff, and that the contents of said bottle was manufactured and placed in said bottle by defendant, that the law presumes that the explosion of the bottle and the consequent injury to plaintiff was caused by defendant's negligence, and that the verdict should be for plaintiff unless the jury should find that notwithstanding this presumption said explosion and injury to plaintiff was not caused by negligence on the part of defendant.
The facts are these: While inspecting the plant at the invitation of defendant and under the guidance of an employee, plaintiff with others arrived at what is termed the "Bevo Room," and while watching a girl employee of defendant place labels on bottles of Bevo, one of the bottles exploded and a piece of glass struck plaintiff an the end of her nose. At the time, plaintiff was standing about six feet from the girl labeling the bottles. It appeared that the bottles were on a long table and the girl employee would push them from her after *249 labeling each and that she pushed one with considerable force and when it hit the others it exploded. It was conceded that the bottle belonged to defendant; that the contents was manufactured and put in the bottle by defendant, and that it was in the hands of and under the control of defendant from the time they received the bottles from the glass manufacturers until the explosion. It appeared that defendant purchased all its bottles from three manufacturers; that they bought only the highest grade of bottles; that a part of each order of bottles was tested before purchase, and that all of the bottles were made from a steel mold, which was also examined and tested by the defendant before it was used in the manufacture of bottles.
It was shown by defendant that Bevo was not naturally an explosive substance and is not a highly charged liquid, but that if too much gas were put in the bottle it would burst. According to one of defendant's witnesses, this was the first time that a bottle had ever exploded.
It is not contended by the plaintiff that there is any direct evidence of negligence on the part of defendant that caused the explosion, but the plaintiff relies entirely upon the presumption that arises from a showing that the explosion occurred. It is asserted that from the fact of the explosion under the conditions and circumstances, the law presumes some negligent act on the part of the defendant, and that the burden was then cast upon the defendant to acquit itself of negligence which arose against it by reason of the presumption.
Defendant has cited us to several cases from other jurisdictions, which hold that the mere explosion of a bottle filled with a liquid charged with gas to the injury of another, does not raise a presumption of negligence, and hence it was incumbent upon the plaintiff to prove some specific act of negligence on the part of the defendant. [Wheeler v. Laurel Bottling Works,
The case of Payne v. Rome Coca Cola Company,
The maxim res ipsa loquitur applies to those cases where the facts show that the more occurrence of the injury or accident implies a breach of duty on the part of the defendant; or, in other words, which tends to show some neglect or omission of duty as the proximate case of the injury. The maxim is applied where a wrong by one has resulted in an injury to another, which is unusual in character, and which does not ordinarily happen provided proper care is taken, and where the facts showing the cause of the injury or the reasons for the happening of the event are peculiarly within the knowledge of the perpetrator.
In the present case, the contents of the bottle was manufactured by and placed in the bottle by defendant, and the bottle was in charge of and under the exclusive control of the defendant until the time of the explosion. And further, the contents of the bottle was ordinarily harmless and when properly handled would not explode. *251 The reasons for and the cause of the explosion were peculiarly within the knowledge of the defendant.
The rule has been stated and applied by the Missouri courts to cases of a like nature, that is, to cases of a stranger or invitee as distinguished from a passenger collision case or a master and servant case where a contractual relation exists between the plaintiff and defendant. For instance, in the case of Gallagher v. Edison Illuminating Company,
Other Missouri cases where the doctrine is applied are: Gannon v. Gas Company,
Guided by the principles enunciated in these decisions, we think under the facts the doctrine of presumptive negligence was properly applied to this case, and that the court below did not err in so ruling.
We are asked by the defendant to rule that the verdict and judgment of $1,000 was so excessive as to indicate passion and prejudice on the part of the jury. Plaintiff was a young girl, 19 years of age, and her evidence tended to show that when the bottle exploded a piece of glass struck her on the end of her nose, making a cut from a quarter to a half inch in length, which *252 healed promptly but left a permanent scar; that as a result thereof there was a numbness and loss of sensation which, according to the physician who testified, was probably due to the severing of the blood supply or injury to the nerve; that the plaintiff formerly had a well formed pointed nose, the shape of which was changed by the injury, making it blunt, which caused the plaintiff embarrassment and prevented her from going out to social affairs. The testimony further tended to prove that her nose frequently would become red and swollen, and at other times would turn blue, remaining in that condition for several days, and that these conditions were permanent. Considering the fact that plaintiff was a girl 19 years of age and has had her face marred by a permanent scar, we do not think the verdict excessive.
The defendant complains of the refusal of the Court to give certain instructions, which instructions, however, are based entirely on the theory that the doctrine of res ipsa loquitur
cannot apply to the facts of the case. As we have held otherwise, the Court was correct in refusing the instructions. [Price v. Metropolitan Street Railway, company.
No error appearing in the record, the judgment should be affirmed.
Addendum
The foregoing opinion of BIGGS, C., is adopted as the opinion of the Court. The judgment of the Circuit Court is accordingly affirmed. Reynolds, P.J., Allen and Becker, JJ., concur. *253