Chisholm v. S. S. Kresge Co.

• Decision Date: 27 December 1935
• Docket Number: No. 7658.,7658.
• Citation: 182 A. 4
• Parties: CHISHOLM v. S. S. KRESGE CO.
• Court: Rhode Island Supreme Court

182 A. 4

CHISHOLM

v. S. S. KRESGE CO.

No. 7658.

Supreme Court of Rhode Island.

Dec. 27, 1935.

Exceptions from Superior Court, Providence and Bristol Counties; Jeremiah E. O'Conncll, Presiding Justice.

Action by Mary Chisholm against S. S. Kresge Company. Verdict for the plaintiff, and the defendant brings exceptions.

Exceptions overruled, and case remitted for entry of judgment.

William S. Flynn, of Providence, for plaintiff.

John M. Morrison and George Paul Slade, Paul R. McIntyre, and Greenough, Lyman & Cross, all of Providence, for defendant.

CONDON, Justice.

The plaintiff in this case was injured by swallowing two small pieces of wire concealed in an order of beef stew, bread, and coleslaw, which she had purchased and was eating at defendant's lunch counter. A third piece of wire was taken from her mouth with some food by the plaintiff, after which she immediately became sick, started to choke and spit blood. The pieces swallowed were located by X-ray examination in the plaintiff's stomach, where they remained for a considerable time, one piece for a much longer time than the other. During that period and for a long time thereafter she suffered great pain and was under almost continuous medical care, unable to follow her regular employment. For such injuries she brought this action of trespass on the case against the defendant for negligence. On the trial in the superior court before a jury, she was awarded damages of $5,500. This verdict was approved by the trial justice in denying the defendant's motion for a new trial.

The case is here on the defendant's exceptions (1) to the trial court's refusal to direct a verdict in defendant's favor; (2) to the denial of defendant's motion for a new trial; and (3) to the court's instruction to the jury as stated, not quite accurately, in the bill of exceptions that "an inference of negligence on the part of the defendant arises upon plaintiff showing wire in the food."

We shall consider the third exception first. Purveyors of food are required to exercise reasonable care so that foreign substances injurious to the human system do not get into food which they offer to their customers. In the ordinary and usual course, the public reasonably expect to find the food sold to them to be free of such substances. It is most unusual and extraordinary to find, not one, but several pieces of wire in food, if such food is prepared with care. Therefore, in a case like the present one, the presence of such wire indicates negligence somewhere along the line in the course of the preparation of that food or in the handling of the same after it has been prepared and before it is served to the customer. An inference of negligence may reasonably be drawn by the jury under circumstances such as appear from the evidence here, and it is for them to say whether these circumstances are sufficiently strong to prove negligence.

The trial justice said that the facts proved by the plaintiff would form "the basis for a logical inference" that the defendant was negligent and that such an inference was for them to draw if they believed the plaintiff's testimony as to the presence of these wires in the food. It is true that he did say that "if she stopped there and no evidence were put in, then that inference would be strong enough so that you would have to decide in favor of the plaintiff." This was not an accurate statement, but it could not have misled the jury. It applied to a different situation where the defendant had not put in any evidence of due care as it did here, and the trial justice immediately added: "That, however, is only an inference." Moreover, he went on and amplified his statement in such a way as to make it clear beyond any doubt that it was for the jury to draw the inference if they thought it justified from the evidence, and concluded this part of the charge in these words: "Now perhaps the real question for the jury is whether the facts disclosed to you by the evidence in this case afford just ground for a reasonable inference that according to ordinary experience these pieces in the coleslaw, would not have gotten there except for the want of due care of the defendant, or of someone for whose conduct the defendant was responsible in the preparation or the service of this food." He had already said that they were at liberty to draw an inference from the testimony of the defendant's witnesses that, notwithstanding the finding of the wires in the food, it was not guilty of negligence.

In a case of this kind it is the province of the trial justice to determine whether or not there is evidence in the case from which inferences may be fairly drawn either for the plaintiff or for the defendant. Such inferences are inferences of fact based on logical reasoning, and they are for the jury to draw. The court has performed its duty when it has found that the evidence is such as to furnish the jury a basis for such reasoning. That is what the trial justice did in this case, and his action in this respect was not different from the action of the trial justice in Minutilla v. Providence Ice Cream Co., 50 R.I. 43, 144 A. 884, 887, 63 A.L.R. 334, which Was approved by this court.

We think the evidence in the instant case is such as to warrant the inference that defendant was negligent, and the trial justice did not prejudice the rights of the defendant in the manner in which he charged the jury with reference thereto, if we consider other parts of his charge in addition to the brief excerpt set out in the defendant's exception.

The jury was recalled by the trial justice to clear up some doubt raised by defendant's counsel that the charge as given put the duty of showing due care on the defendant. Again the trial justice, after making the law clear to the jury on this point, went on to elucidate the duty of burden of proof in the following words: "If the defendant establishes by proof, if the defendant proves—and it is for you to determine the weight and the sufficiency of the proof and whether the defendant has established that point or not—if the defendant has proven to you by the evidence that it exercised the care customarily employed by others engaged in like business, then that evidence would furnish the basis for a logical inference that the defendant was not negligent. And so I say, in the absence of any other testimony, you would have to weigh these inferences and determine which of them is the stronger. If the plaintiff's inference were stronger, and there was no other testimony except the presence of the wire in that food, on the one hand, and the customary care employed by the defendant on the other hand, you would have to determine which of these inferences was the stronger. And if they were equal in value as proof, the plaintiff would not be entitled to recover and your verdict should be for the defendant." This added language cured any possible defects in the charge as previously given and fully protected all the rights of the defendant.

In support of its first exception, defendant claims that at the conclusion of the testimony the state of the evidence was such that there was nothing upon which the jury could base a finding of negligence, except mere conjecture. It contends that, because the plaintiff offered no testimony as to where the wires actually came from and the defendant had shown that it had used the care ordinarily exercised by careful and prudent purveyors of food, the jury could not assume because of the presence of the wires in the food that the defendant was negligent. A careful reading of the record leads us to conclude that the situation at that stage of the trial was not as simple as defendant argues. There was testimony on the part of the plaintiff as to the carrying of the food to the serving tables from the basement, where it was prepared, and as to the manner in which it was taken from the serving tables and served to customers.

These circumstances could reasonably lead the jury to infer that the wires got into the food in the course of its preparation and delivery by the defendant and in consequence of its negligence. In view of the actual existence of three pieces of wire in the food when served to the plaintiff and the other evidence in the case, it was clearly a question for the jury whether the defendant was as careful as it claimed to have been in the service and preparation of this food.

On a motion for direction of a verdict, the court is not at liberty to weigh the evidence or pass upon the credibility of the...