29 Ga. App. 151 | Ga. Ct. App. | 1922
Mrs. W. T. Eowe brought suit against the Louisville & Nashville Eailroad Company, alleging that while traveling on said road she went for her evening meal into a dining-car attached to the train and which was operated by the defendant; that she was served with food which was “ spoiled and contaminated to such an extent as to render it unfit for food; ” that “ defendant was negligent in selling to petitioners an impure, contaminated, and spoiled article of food, without giving her any warning of its condition,” and that by eating said food she was “ rendered sick and ill with a sickness or disease known as ptomaine poisoning.” The trial of the ease resulted in a verdict for the defendant, and the plaintiff excepted. In the brief of counsel for the plaintiff special grounds 1 and 4 of the motion for a new trial are expressly abandoned, leaving for consideration the general grounds and special grounds 2 and 3. These special grounds alleged that the court erred in instructing the jury as follows: (2) “The burden of proof is on the plaintiff to show that she was injured by unwholesome food served to her in the dining-car of the defendant as alleged by her, and also that the defendant was lacking in ordinary care in respect to the quality and preparation of the food furnished her; and that in the exercise of ordinary care the defendant should have known that such food was of a character, or so prepared, as that its service to plaintiff would be likely to cause her injury.” (3) “It was the duty of the defendant company in furnishing meals to passengers and to this plaintiff, to furnish a meal on the train at that time and to furnish her wholesome food, and it must exercise ordinary care to do that, and ordinary care' means that care that every
This case is very much like that of Yaleri v. Pullman Co., 218 Fed. 519, which “was an action to recover damages for personal injuries sustained by plaintiff through eating food served to her by defendant upon its buffet car.” In this case, as in the Yaleri case, “the question, squarely raised, therefore, is whether the liability of the defendant, who apparently differs in no wise from any other person keeping a restaurant, is that of an insurer of its food, or whether it is only liable to exercise reasonable care in providing and serving such food as it offers for consumption.” In the brief of counsel for the plaintiff it is insisted that the court should have given section 4135 of the Civil Code of 1910 in charge to the jury, on the law of implied warranty, and should have charged the jury as follows: “ In the transaction that took place between Mrs. Bowe and the Louisville & Nashville Bailroad Company at the time she was served a meal on its train between Montgomery and Birmingham the railroad impliedly contracted with her to sell the articles of food which they warranted to be merchantable and reasonably suited for the use intended.” In this contention we cannot agree with counsel. The section of the code referred to reíales to private sales, and does not apply where meals are served in a dining-car, as in this case. Prof. Beale in his book on Innkeepers (§ 69) says: “The innkeeper is not an insurer 'of the quality of- his food, but he would be liable for knowingly or negligently furnishing bad or deleterious food.” In Loucks v. Morley, 39 Cal. App. 578 (179 Pac. 532), Mr.
In Greenwood Cafe v. Lovinggood, 197 Ala. 34 (2) (72 So. 354 (2) ), it was held: “The keeper of a hotel, dining car, café, or other public eating place, engaged in the business of serving food to customers, is bound to use due care to see that the food so served is fit for human consumption and may be eaten without causing sickness or endangering life by reason of its condition, so that, for his negligence in failing to observe such duty to his patrons, such keeper is liable.” A number of decisions were there cited to support this view. In Sheffer v. Willoughby, 163 Ill. 522, Mr. Justice Craig said: “As respects the goods of a guest which he takes with him when he stops at an inn, the innkeeper is practically an insurer, and where an action is brought to recover for goods lost, the guest is only required to show the existence of the relation of inkeeper and guest, and the loss, to au
Furthermore, even conceding that under the changed conditions of the present day the owner of a restaurant or dining car does sell the food which his customer orders and eats, and that the customer becomes the owner of the food and can do as he pleases with it, section 4460 of the Civil Code (1910) excludes the idea of an implied warranty in such a case, and makes the liability of the owner depend upon negligence, the language of the section being as follows: “ A person who knowingly or carelessly sells to another unwholesome provisions of any kind, the defect being unknown to the purchaser, and damage resulting to the
Under the rulings in the foregoing erases the excerpts from the charge of which complaint is made are not erroneous, and, there being evidence to support the finding of the jury, the judge did not err in overruling the motion for a new trial.
Judgment affirmed.