Cashwell v. Fayetteville PepsiCola Bottling Co.

• Decision Date: 17 October 1917
• Docket Number: 226.
• Citation: 93 S.E. 901,174 N.C. 324
• Parties: CASHWELL v. FAYETTEVILLE PEPSICOLA BOTTLING CO.
• Court: North Carolina Supreme Court

93 S.E. 901

174 N.C. 324

CASHWELL v. FAYETTEVILLE PEPSICOLA BOTTLING CO.

No. 226.

Supreme Court of North Carolina

October 17, 1917

Appeal from Superior Court, Sampson County; Lyon, Judge.

Action by J. H. Cashwell against the Fayetteville Pepsi-Cola Bottling Company. Judgment for plaintiff, and defendant appeals. Affirmed.

F. M Wooten, of Greenville, and Kenan & Wright, of Wilmington, for appellant.

Butler & Herring, of Clinton, and J. Abner Barker, of Roseboro, for appellee.

WALKER J.

The plaintiff sued for personal injuries caused by the bursting of a Pepsi-Cola bottle, sold to him by defendant, which he was handling in his business as a storekeeper. He alleged that the explosion was caused by the defendant's negligence. There was evidence tending to show that, while the plaintiff was placing some of the bottles, taken from a crate, on the shelves of his store, one of the bottles burst or exploded, and so injured his eye that he lost the sight of it.

The plaintiff insisted that the mere fact of the explosion is sufficient to carry the case to the jury under the doctrine of res ipsa loquitur, but we understand that this fact alone was held to be insufficient as evidence of negligence in Dail v. Taylor, 151 N.C. 284, 66 S.E. 135, 28 L. R A. (N. S.) 949, where it appeared that the plaintiff in that case had been injured by the bursting of a Coca-Cola bottle.

Before there can be a recovery for negligence, it must be shown that the person who is sought to be held liable, as the author of it, has omitted some legal duty which he owed to the injured party. Such breach of duty could be said to exist when a vendor sells goods having a latent defect of a kind likely to cause some physical injury to the vendee, and of which the vendor was aware or which he should have ascertained by proper care and attention (Wharton on Negligence, § 774; 29 Cyc. pp. 430-431), and may be referred to the general principle announced in the notable case of Heaven v Pender, 11 L. R. (1882-83) p. 503, where it was said that:

"Whenever one person is, by circumstances, placed in such a position towards another that every one of ordinary sense who did think would at once recognize that if he did not use ordinary care and skill in his own conduct, with regard to those circumstances, he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger." Dail v. Taylor, supra.

Referring to this statement of the principle, it is said, in that case, by Justice Hoke: First. "Considering the case in this aspect, it is very generally held that, in a claim of this character, a plaintiff is not required to establish his case by direct proof, but the issue must be submitted to the jury whenever facts are shown forth in evidence from which a fair and reasonable inference of negligence may be made."

Speaking to this question, in Shearman & Redfield on Negligence, § 58, the authors say:

"The plaintiff is not bound to prove more than enough to raise a fair presumption of negligence on the part of the defendant and of resulting injury to himself. Having done this, he is entitled to recover, unless the defendant produces evidence to rebut the presumption. It has sometimes been held not sufficient for the plaintiff to establish a probability of the defendant's default, but this is going too far. If the facts proved render it probable that the defendant violated its duty, it is for the jury to decide whether it did so or not. To hold otherwise would be to deny the value of circumstantial evidence. As already stated, the plaintiff is not required to prove his case beyond a reasonable doubt, though the facts shown must be more consistent with the negligence of the defendant than the absence of it. It has never been suggested that evidence of negligence should be direct and positive. In the nature of the case, the plaintiff must labor under difficulties in proving the fact of negligence, and, as that fact is always a relative one, it is susceptible of proof by evidence of circumstances bearing more or less directly on the fact of negligence--a kind of evidence which might not be satisfactory in other classes of cases open to clear proof. This is on the general principle of the law of evidence which holds that to be sufficient and satisfactory evidence which satisfies an unprejudiced mind."

This statement is cited with approval in the opinion of the court in Fitzgerald v. Railroad, 141 N.C. 530-534, 54 S.E. 391, 393, 6 L. R. A. (N. S.) 337, and in that case it was held as follows:

"Direct evidence of negligence is not required, but the same may be inferred from acts and attendant circumstances; and if the facts proved establish the more reasonable probability that the defendant has been guilty of actionable negligence, the case cannot be withdrawn from the jury, though the possibility of accident may arise on the evidence. There are instances where this requirement is met by simply proving the occurrence and the resultant injury, a doctrine which finds expression in the phrase, res ipsa loquitur, and which has been considered and applied in several recent decisions of this court, as in Fitzgerald's Case, supra; Ross v. Cotton Mills, 140 N.C. 115 [52 S.E. 121, 1 L. R. A. (N. S.) 298]; Stewart v. Carpet Co., 138 N.C. 60 ; Womble v. Grocery Co., 135 N.C. 474 ."

Discussing the principle res ipsa loquitur, it is said in Labatt on Master and Servant, § 843, quoted with approval in some of the cases referred to:

"The rationale of the doctrine is that in some cases the very nature of the occurrence may, of itself, and through the presumption it carries, supply the requisite proof; it is applicable when, under the circumstances shown, the accident presumably would not have happened if due care had been exercised. The essential import is that, on the facts proved, the plaintiff has made out a prima facie case without direct proof of negligence."

It was contended by the plaintiff in Dail v. Taylor, supra, that the authorities we have cited above applied to his case, and the mere bursting of the bottle was sufficient to show, prima facie at least, that there was negligence on the part of the defendant; but this court thought that the adoption of that view of the law would not be safe, and that some additional evidence should be required to make out a prima facie case for the plaintiff. It was ruled, though, that where it appeared that bottles of the defendant filled with Coca-Cola had exploded on other occasions, under similar circumstances, it was evidence sufficient to be submitted by the court to the jury on the question of negligence, as it was not merely conjectural, but formed a basis for a reasonably safe inference that the defendant had not exercised that degree of care which the law exacted of him under the circumstances, and was proof of that kind of probability as to the conduct of the defendant which was mentioned in the decisions of the court already cited and quoted from. This principle of the law has been clearly recognized and applied in numerous cases. In Simpson v. Lumber Co., 133 N.C. at pages 101 and 102, 45 S.E. 472, we said:

"Where 'the plaintiff shows damage resulting from the defendant's act, which act, with the exercise of proper care, does not ordinarily produce damage, he makes out a prima facie case of negligence which cannot be repelled but by proof of care or of some extraordinary accident which renders care useless.' Aycock v. Railroad, 89 N.C. 321; Lawton v. Giles, 90 N.C. 374; Piggot v. R. R., 54 E. C. L. 228; Craft v. Timber Co., 132 N.C. 151 ; Ins. Co. v. R. R., 132 N.C. 75 . In Aycock v. R. R., 89 N.C. 329, the court, through Smith, C.J., says: 'A numerous array of cases are cited in the note (2 A. and E. R. R. Cases, 271) in support of each side of the question as to the party upon whom rests the burden of proof of the presence or absence of negligence, where only the injury is shown, in the case of fire from emitted sparks.' "

See, also, Currie v. Railroad Co., 156 N.C. 419, 72 S.E. 488, and the more recent case of Simmons v. John L. Roper Lumber Co., 93 S.E. 736, at this term.

It is contended by the defendant, though, that the class of cases referring to the emission of sparks from railroad locomotives does not apply here; but we do not see why it does not, when there is added to the fact of the explosion proof of similar occurrences, and the further fact, which is not denied, that, in almost the largest majority of instances where filled bottles are sold in the trade, there have been no such explosions. The fact last mentioned leads fairly and reasonably to the conclusion that there was something wrong, or a failure to exercise due care, in the filling of the bottles which did explode. As the pressure came from the inside, the explosions have taken place outwardly, and scattered fragments of the broken glass in every direction. A jury might form more than a mere conjecture or a guess that the bottle had been improperly and carelessly charged with the carbonic acid gas. We do not see how the pressure from exploding gas could be otherwise than outwardly, and the manner in which the bottle exploded, and the effect of the explosion, show that the force applied to the walls of the bottle was internal, and there was nothing there that could have produced the explosion except the gas. It will be well here to refer to the testimony. Will Harrison testified:

"I work for defendant; have been its bottler for 10 years. I and the other boy that works there handle all the bottles. When a car of bottles come to the depot we take them out of the car, inspect them one by one, and put them in the crates, with racks--each bottle is in a rack to itself. We

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