Bradley v. Conway Springs Bottling Co.

• Decision Date: 08 November 1941
• Docket Number: 35194.
• Citation: 118 P.2d 601,154 Kan. 282
• Parties: BRADLEY v. CONWAY SPRINGS BOTTLING CO.
• Court: Kansas Supreme Court

118 P.2d 601

154 Kan. 282

BRADLEY v. CONWAY SPRINGS BOTTLING CO.

No. 35194.

Supreme Court of Kansas

November 8, 1941

Syllabus by the Court.

Negligence may be proved by circumstantial evidence, and if the facts of a particular case show that an injured plaintiff was not negligent and that in all reasonable probability the injury would not have occurred had it not been for some negligence of defendant which was or should have been within knowledge of defendant, and from the very nature of things could not well be within knowledge of plaintiff, the evidence is sufficient to go to jury and to sustain a verdict for plaintiff.

Bottlers and distributors of bottled beverages are not "insurers", but are charged, under the fundamental rule of liability for negligence, with "due care" which means the degree of care commensurate with danger resulting from lack of it.

Where plaintiff, who operated a restaurant, was injured when a bottle of carbonated beverage manufactured and bottled by defendant exploded while plaintiff was putting bottle in an icebox after a case of beverage had been brought to restaurant by defendant's employee, the doctrine of "res ipsa loquitur" was applicable, and doctrine of "unavoidable accident" did not apply to relieve defendant from liability for injuries, notwithstanding that bottle was in plaintiff's possession and control at time of explosion.

Under the facts set out in the opinion, the doctrine of res ipsa loquitur was properly relied upon by plaintiff, in an action for damages for personal injuries resulting from the explosion of a bottle of Pepsi-Cola.

Appeal from District Court, Sedgwick County, Division No. 4; Isaac N. Williams, Judge.

Action by Etta M. Bradley against the Conway Springs Bottling Company, a corporation, for personal injuries sustained by plaintiff when a bottle of beverage exploded in plaintiff's hand as she was putting it in an icebox. From a judgment overruling defendant's demurrer to plaintiff's evidence, defendant appeals.

Paul H White, Austin M. Cowan, C. A. McCorkle, W. A. Kahrs, Robert H. Nelson, and Henry L. Butler, all of Wichita, for appellant.

W. D Jochems, J. Wirth Sargent, Emmet A. Blaes, and Roetzel Jochems, all of Wichita, for appellee.

HARVEY Justice.

This was an action for damages for personal injuries sustained by plaintiff when a bottle of Pepsi-Cola exploded in her hand as she was putting it in the icebox. Upon a jury trial the jurors were unable to agree. Defendant has appealed from an order overruling its demurrer to plaintiff's evidence.

Briefly stated, and so far as is pertinent here, it was alleged that defendant is engaged in the business of manufacturing and selling various bottled beverages, among others a carbonated beverage under the trade name of "Pepsi-Cola," commonly referred to as a soft drink, extensively advertised and quite generally sold; that on April 13, 1940, and for some time prior thereto, plaintiff and her husband were jointly engaged in operating a small restaurant at a designated location in Wichita; that she assisted her husband in the work of operating the restaurant and waiting upon customers; that they kept for sale various beverages including the one sold under the trade name of "Pepsi-Cola," which defendant manufactured, bottled and sold; that about 5:30 o'clock on that date one Harley Glick, a duly authorized agent, servant and employee of defendant, in response to an oral order by plaintiff's husband, brought into the restaurant a case of Pepsi-Cola which had been manufactured and bottled by defendant; that he placed the case on the floor about six feet from an icebox in which plaintiff and her husband kept bottled beverages; that after Glick placed the case of Pepsi-Cola on the floor he sat on one of the stools of the lunch counter and ordered a glass of milk, which was served to him; that while Glick was still at the lunch counter plaintiff stepped over to the case of Pepsi-Cola and removed four bottles therefrom for the purpose and with the intention of placing same in the icebox; that she placed these bottles on the icebox, slid back the lid thereof, and placed three of the bottles in the icebox and took the fourth bottle in her hand preparatory to placing it in the icebox, and before she had lowered it to a point where it came in contact with the cool air in the icebox, or with ice or water therein, the bottle exploded; that some particle, or particles, of the glass in the bottle struck her in the left eye and punctured the eyeball. Plaintiff alleged that in removing the bottle of Pepsi-Cola from the case on the floor until it exploded in her hand she had handled the same carefully and in the customary and usual manner in which she handled Pepsi-Cola from time to time, and the explosion of the bottle was not caused by or due to any fault, negligent or improper handling of the same on her part. It was further alleged that Pepsi-Cola is manufactured and bottled by defendant as a carbonated beverage; that the bottles are charged with carbon dioxide, which gas exerts a pressure upon the bottle in which it is confined; that the bottle would not have exploded if due care had been used by defendant; that all the facts and circumstances of and concerning the manufacture of Pepsi-Cola, the bottles in which the same is contained, and the method of bottling the same, are peculiarly and exclusively within the knowledge of defendant and not within the knowledge of plaintiff, and that the explosion of the bottle of Pepsi-Cola was due to some act or acts of negligence of defendant, the exact nature of which act or acts is unknown to plaintiff, and that such negligence on the part of defendant was the direct and proximate cause of the injuries sustained by plaintiff. The injuries sustained by plaintiff were detailed and there was a second cause of action, but these matters need not be detailed in this opinion. The answer contained a general denial, but admitted the residence of plaintiff, the corporate existence of defendant, and that defendant is engaged in the business of bottling and selling the beverage known as Pepsi-Cola; denied plaintiff was injured in the manner claimed in her petition, and alleged that if the bottle of Pepsi-Cola exploded, such explosion was not the result of any negligence of defendant; alleged that defendant does not manufacture the glass bottles in which the beverage is sold, but that the same are manufactured by a well-known, designated company, and are of the type commonly used for the bottling of such beverages as Pepsi-Cola; that defendant used due care in selecting the manufacturer and the type of bottle, and if there were any defects therein the same could not be discovered by ordinary care on the part of defendant; that it used due care in inspecting the bottles and in filling and capping the same; that the method used is standard and is that customarily and ordinarily used in the filling of such bottles throughout the country; that it used modern machinery and exercised due care in the operation thereof in bottling the beverage and inspecting the bottles prior to sale and delivery, and hired experienced persons to operate the machinery, and that the work was performed with due care; that if any injury occurred to plaintiff the same was not due to negligence of defendant, but was due to matters beyond its control, and was due to the negligence of plaintiff without which the accident would not have occurred or by reason of latent defects in the bottle which were not discerned by ordinary inspection, or both. The reply was a general denial.

Evidence on plaintiff's behalf was in substantial accord with the allegations of her petition. Defendant's agent Glick, or his helper, had brought a case of Pepsi-Cola into the restaurant and set it down on the floor only a few feet from the icebox. Glick was eating a light lunch and plaintiff's husband was paying him for the Pepsi-Cola. Plaintiff went to the case of Pepsi-Cola and took out four bottles, two in each hand, taking them by the tops, with a finger between the two bottles. She stepped over to the icebox. This was an oblong box, perhaps three feet high, with a compartment for ice in one end and water over the bottom. It was used for cooling bottled beverages, and also bottled milk, even half pint bottles, and the water was not high enough to come over the top of any of the bottles. The top had two sliding doors, one toward each end, and a space upon which articles might be placed. Plaintiff set the four bottles on this space, slid one of the doors back, took the bottles, one at a time, and leaned over to place them in the icebox, upright. She had placed three of the bottles in the box and had taken hold of the fourth one, was holding it with her hand about the top of it, had turned her head momentarily to hear what an employee had said to her, when the bottle exploded. It broke in two just below the neck of the bottle, which remained in her hand, and the cap still on the top of it. The main portion of the bottle fell into the icebox. Some particle of glass was thrown by the explosion into plaintiff's eye with sufficient force to cut the eyeball and cause her to lose entirely the sight of the eye. Her husband got the larger piece of the broken bottle from the icebox, and Mr. Glick, defendant's agent, took that, and the piece which plaintiff was holding in her hand when the explosion occurred, with him. The bottles were the property of defendant. In purchasing carbonated drinks the purchaser made a deposit for the bottles, for which credit was given on their return.

It is stipulated that the highest temperature in Wichita that day was 86 degrees and was 72 at the time of plaintiff's injury.

The brief of appellant points out that plainti...