Ash v. Childs Dining Hall Co.

• Decision Date: 11 September 1918
• Citation: 231 Mass. 86,120 N.E. 396
• Parties: ASH v. CHILDS DINING HALL CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

231 Mass. 86

120 N.E. 396

ASH

v.CHILDS DINING HALL CO.

Supreme Judicial Court of Massachusetts, Suffolk.

Sept. 11, 1918.

Exceptions from Superior Court, Suffolk County; Frederic H. Chase, Judge.

Action by Flora A. Ash against the Childs Dining Hall Company. Verdict for plaintiff, and defendant excepts. Exceptions sustained.

Albt. J. Connell, of Boston, for plaintiff.

Fitz-Henry Smith, Jr., of Boston, for defendant.

RUGG, C. J.

This is an action of tort. It rests solely upon allegations of negligence. The burden of proving that the proximate cause of the plaintiff's injury was the negligence of the defendant or its servants or agents rested on the plaintiff. It is well settled that the duty rests upon the keeper of an inn, restaurant, or other eating place to use due care to furnish wholesome food, fit to eat. Failure in this respect resulting in injury is foundation for an action of negligence. Bishop v. Weber, 139 Mass. 411, 417, 1 N. E. 154,52 Am. Rep. 716;Wilson v. J. G. & B. S. Ferguson Co., 214 Mass. 265, 101 N. E. 381;Tomlinson v. Armour & Co., 75 N. J. Law, 748-762, 70 Atl. 314,19 L. R. A. (N. S.) 923.

The testimony of the plaintiff tended to show that she received injuries from the presence of a tack in a piece of blueberry pie which she was eating while a guest of the defendant in its restaurant. Her description was that ‘there lodged in her throat, in her right tonsil, a very thin small-headed tack, the head a little mite larger than a pin head. * * * It was a little longer than a carpet tack.’ It was not the same shape as a carpet tack. ‘It was thin, long and a very small head.’ The head was flat. ‘It was a black tack.’

The pie was made by the defendant on its premises and served as food by its waitress to the plaintiff. The manager of the defendant testified that at that time its blueberries came in ordinary quart berry baskets, made of wood in which were tacks ‘hardly an eighth of an inch long, with a flat head, and that this was the first time in the eighteen years that he had been in the business that he had seen a tack in blueberries.’ There was other testimony to the effect that a high degree of care was exercised in the preparation of the blueberries for the pies. That is laid on one side, as it may not have been credited by the jury. But disbelief of the defendant's testimony as to the precautions used by it cannot take the place of evidence of negligence.

There is nothing in the record from which it can be inferred that the harm to the plaintiff resulted directly from any failure of duty on the part of the defendant. The precise cause of her injury is left to conjecture. It may as reasonably be attributed to a condition for which no liability attaches to the defendant as to one for which it is responsible. Under such circumstances the plaintiff does not sustain the burden of fastening tortious conduct on the defendant by a fair preponderance of all the evidence, and a verdict ought to be directed accordingly. Leavitt v. Fiberloid Co., 196 Mass. 440, 444, 82 N. E. 682,15 L. R. A. (N. S.) 855.

The tack was very small. It was so tiny that it readily might have become imbedded in a blueberry. If so, its color and shape were such that it would naturally escape the most careful scrutiny. It might as readily have stuck into a blueberry before it came to the possession of the defendant as afterward. The carelessness...