Pattinson v. Coca-Cola Bottling Co. of Port Huron

• Citation: 52 N.W.2d 688,333 Mich. 253
• Decision Date: 07 April 1952
• Docket Number: COCA-COLA,No. 79,79
• Parties: PATTINSON v.BOTTLING CO. OF PORT HURON.
• Court: Supreme Court of Michigan

Page 688

52 N.W.2d 688

333 Mich. 253

PATTINSON v. COCA-COLA BOTTLING CO. OF PORT HURON.

No. 79.

Supreme Court of Michigan.

April 7, 1952.

Walsh, Walsh, O'Sullivan, Stommel & Sharp, Port Huron, for appellant.

Telfer, Barr & Telfer, Port Huron, for appellee.

Before the Entire Bench.

CARR, Justice.

Plaintiff was injured as a result of the breaking of a bottle containing coca-cola. The occurrence took place on October 23, 1947. On that date a special train was operated by the Grand Trunk Western Railway Company from Port Huron to Chicago for the accommodation of passengers desiring to attend an International Harvester convention in the latter city. Plaintiff's employer, the Canada Railway News Company, made arrangements for the serving of soft drinks and other refreshments on the train, a converted baggage car being equipped for that purpose. A counter was installed running lengthwise of the car over which the waitresses, including the plaintiff, served refreshments to the customers. Beneath the counter was a metal container, divided into two sections referred to in the record as 'coolers.' In these sections were kept bottles of coca-cola which, it is conceded, were purchased from the defendant by whom the product was prepared and bottled. In each section of the container a quantity of chipped and broken ice was placed, the purpose being to maintain the beverage at a temperature suitable for drinking.

On the trial of the case it was the claim of the plaintiff that the ice was in the coolers at the time she boarded the train, and that the bottles of coca-cola were packed therein by the employees of the Canada Railway News Company. She testified further that at about 8:30 in the morning, as the train was approaching the city of Battle Creek, she reached into the cooler for the purpose of taking out a bottle to serve a customer. As she did so, and before she had touched the bottle, it exploded with a 'bang.' Her right hand was cut by pieces of glass. She was given temporary treatment for the injury and at Battle Creek was removed to a hospital, where first aid was given and a surgical operation performed. Thereafter plaintiff returned to her home in Port Huron.

In her declaration plaintiff averred that it was the duty of the defendant to exercise due and proper care in the bottling of its product, and to regulate the operation in such manner that force or pressure within the bottle would not develop to such a degree as to break or shatter it. It was further averred that defendant negligently failed to observe the duty resting on it, and that the injury to the plaintiff resulted from such negligence. Defendant by its answer denied any lack of due and proper care on its part in the preparation and bottling of the coca-cola.

At the conclusion of plaintiff's proofs, defendant moved for a directed verdict on the ground that no actionable negligence on its part had been shown and that the facts established by the proofs were insufficient to support an inference of negligence. The motion was taken under advisement under the provisions of C.L.1948, § 691.691 et seq., Stat.Ann. & Stat.Ann.1949 Cum.Supp. § 27.1461 et seq. Following the introduction of testimony on behalf of defendant the motion was renewed, decision again reserved, and the case submitted to the jury by which verdict in plaintiff's favor in the sum of $1,500 was returned. Thereafter motion for judgment notwithstanding the verdict was made, and denied. Defendant has appealed, claiming that such denial was erroneous. The sole question presented is whether the proofs of the plaintiff were sufficient to permit the submission of the case to the jury.

On behalf of appellant it is insisted that the testimony of plaintiff and her witnesses did not establish facts sufficient to support legitimate inferences of negligence on its part. The claim is emphasized that proof showing the happening of an accident is not enough to permit a finding of actionable negligence. The doctrine of res ipsa loquitur has not been adopted in this State. Rebentisch v. Korda, 331 Mich. 656, 661, 50 N.W.2d 192. This does not mean, however, that such an inference may not properly be drawn from facts and circumstances surrounding the occurrence in which an injury has been suffered. In Burghardt v. Detroit United Railway, 206 Mich. 545, 173 N.W. 360, 361, 5 A.L.R. 1333, the Court, in reversing a judgment for the defendant entered upon a directed verdict, said:

'This court has not adopted the rule res ipsa loquitur. We have uniformly held that the happening of the accident alone is not evidence of negligence; and we have as uniformly held that negligence may be established by circumstantial evidence, and that, where the circumstances are such as to take the case out of the realm of conjecture and within the field of legitimate inferences from established facts, at least a prima facie case is made: Alpern v. Churchill, 53 Mich. 607, 19 N.W. 549; Barnowsky v. Helson, 89 Mich. 523, 50 N.W. 989, 15 L.R.A. 33; La Fernier v. Soo River Lighter & Wrecking Co., 129 Mich. 596, 89 N.W. 353; Stowell v. Standard Oil Co., 139 Mich. 18, 102 N.W. 227; Elsey v. J. L. Hudson Co., 189 Mich. 135, 155 N.W. 377, L.R.A.1916B, 1284; O'Donnell v. Lange, 162 Mich. 654, 127 N.W. 691; Harris v. Royal Oak Savings Bank, 187 Mich. 407, 153 N.W. 677; Sewell v. Detroit United Railway, 158 Mich. 407, 123 N.W. 2; Gerstler v. Weinberg, 160 Mich. 267, 125 N.W. 1; Congdon v. Detroit, J. C. Railway Co., 179 Mich. 175, 146 N.W. 118; Bayer v. Grocholski, 196 Mich. 325, 162 N.W. 1030.

"In this case the falling of the roof was said:

"In this case the falling of the roof was in and of itself some evidence that the work of raising it was not being done with ordinary care and skill. It is true that the mere fact of any injury does not impute negligence on the part of any one, but, where a thing happens which would not ordinarily have occurred if due care had been used, the fact of such happening raises a presumption of negligence in some one. * * *

"This roof not properly supported would fall as a natural result of the laws of gravitation, but if properly braced there would be no reason for its falling from that cause, and it would not fall from any other cause without the interposition of the elements or some human agency. Therefore, without any other showing than that it suddenly gave way, slipped or tipped to one side, and fell, the presumption is almost conclusive that it fell because it was not sufficiently braced or stayed.'

'In Sewell v. Detroit United Ry., supra, Mr. Justice Montgomery, speaking for the court, said:

"It is the settled rule of this state that negligence of the defendant must be proved, and that an inference of negligence is not to be drawn from the mere fact of an accident. But it has also been held in numerous cases that the circumstances attending an injury may be such as to justify an inference of negligence. As in the present case, if all that appeared had been that the plaintiff was riding in a car of the defendant under the control of its servants, and the car in which plaintiff was riding continued its course until it collided with another car ahead of it standing still, with sufficient force to push the still car ahead 75 feet, the inference that some one had blundered prima facie would be the most natural one to be drawn, and that inference is so clear that it would not require further proof of negligence on the part of the defendant."

In Hazen v. Rockefeller, 303 Mich. 536, 6 N.W.2d 770, 775, plaintiff, a customs inspector at Sault Ste. Marie, Michigan, was struck and injured by an open door on a car driven by defendant. The record in the case indicated that the door flew open, after the vehicle was started, because not securely closed. The responsibility for such condition was in dispute. After pointing out that negligence could not be presumed, and that the burden of proof was on the plaintiff to establish that defendant was negligent and that such negligence constituted a proximate cause of the accident, it was said: 'There is no direct testimony that defendant opened or closed the car door in question. The conflict between the testimony of defendant and that of plaintiff and Inspector Baker presented a question of fact as to who closed the door. There is testimony from which the trial court, as trier of the facts, could reasonably find that defendant closed the door. From the evidence and the circumstances of the accident a logical and legitimate inference could be drawn that defendant did not properly close the door. Furthermore, a logical and legitimate inference could be drawn that the door swung open and struck plaintiff because defendant had not properly closed it. Such inferences could properly be drawn from the testimony and circumstances of the accident, without resorting to speculation, conjecture, or guess.' See, also, Ebers v. General Chemical Co. 310 Mich. 261, 17 N.W.2d 176; Trafamczak v. Anys, 320 Mich. 653, 31 N.W.2d 832.

In the case at bar plaintiff's testimony was, in substance, that the bottle exploded as she was about to remove it from the container, and that she was cut by flying pieces of glass. It was her claim that she did not touch the bottle. There is nothing in the record to indicate that any external force whatever was applied to it immediately prior to the breaking. Plaintiff's testimony is corroborated by that of her witness, Mrs. Forro, a fellow employee, who testified in part as follows:

'* * * Mildred had her hand over the bottle, but she wasn't touching the bottle. And there was one round of explosion and the coke bottle blew.

'Q. Did you see the bottle blow? A. I felt the glass hit me * * * Yes, it blew. Some of the glass hit me, you know, didn't cut me at all, but I felt some of the glass hit me as the bottle blew.

'Q. Did you hear any sound? A. One big bang.

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'Q. It was a bottle that was standing upright? A. It was one of...