Coca Cola Bottling Works of Evansville v. Williams

• Decision Date: 05 December 1941
• Docket Number: 16523.
• Citation: 37 N.E.2d 702,111 Ind.App. 502
• Parties: COCA COLA BOTTLING WORKS OF EVANSVILLE, Inc., v. WILLIAMS.
• Court: Indiana Appellate Court

37 N.E.2d 702

111 Ind.App. 502

COCA COLA BOTTLING WORKS OF EVANSVILLE, Inc., v. WILLIAMS.

No. 16523.

Appellate Court of Indiana, in Banc.

December 5, 1941

Charles M. LaFollette, Herman L. McCray, and F. Bayard Culley, Jr. all of Evansville, for appellant.

Winfield K. Denton and Arthur F. Denton, both of Evansville, for appellee.

CURTIS Judge.

This was an action brought by the appellee against the appellant to recover damages for injuries alleged to have been sustained by the appellee in drinking a bottle of Coca Cola bottled by the appellant, containing a foreign substance to-wit, concrete, which it is charged was permitted to be in the bottle through the negligence of the appellant.

The complaint was in two paragraphs, each paragraph alleging a cause of action for negligence causing alleged injuries to the appellee. A motion was filed by the appellant to strike out the first paragraph of the complaint, which was overruled with an exception. The issues were closed by an answer in general denial to each paragraph of complaint.

The trial was before a jury resulting in a verdict for the appellee against the appellant in the sum of $350. The appellant then filed a motion for new trial, which was overruled with an exception. A judgment was then rendered upon the verdict and in accordance therewith.

The error relied upon for reversal is that the court erred in overruling the appellant's motion for new trial. The cause or grounds of the motion for new trial, which are duly presented to this court, are:

That the verdict of the jury is not sustained by sufficient evidence and is contrary to law; alleged error in the giving to the jury the court's own instruction numbered 6, which is as follows:

"The court instructs you that the plaintiff charges in each paragraph of her complaint that on or about the third day of December, 1937, the defendant carelessly and negligently failed to properly clean one of its empty bottles and thereafter carelessly and negligently failed to inspect the same, and that thereafter, the said bottle was carelessly and negligently filled with Coca Cola by the defendant, and that thereafter the said defendant carelessly and negligently failed to inspect the bottle.

"In order for the plaintiff to recover, the plaintiff must prove these allegations of negligence by a fair preponderance of the evidence, and if you find from a fair preponderance of the evidence that the defendant in the cleaning, filling and inspecting of the bottle involved in this case used ordinary care, the plaintiff cannot recover in this action and your verdict should be for the defendant.

"And in determining whether the defendant used ordinary care you may take into consideration whatever the evidence shows as to methods and custom used in cleaning, filling and inspecting bottles by other well managed concerns in other or similar businesses in the City of Evansville, and such evidence may be considered by you as well as all other evidence bearing upon the issues of this case."

Alleged error in the giving of plaintiff's (appellee's) tendered instructions numbered 7, as follows:

"The court instructs the jury that reasonable and ordinary care is that degree of care which a person of ordinary prudence is presumed to use and exercise under the particular circumstances to avoid injury and it must have been in proportion to the danger to be avoided and the consequences involved in its character and apparent at the time and this is the degree of care which the defendant must have exercised in order to be absolved of the charge of the negligence in this action.

"The court further instructs the jury that if you find from a fair preponderance of the evidence that the defendant acting by and through its servants and agents, within the scope and course of their employment, did not exercise that degree of care which an ordinarily prudent person would have exercised under the same or similar circumstances and the plaintiff was injured by reason thereof all substantially as charged in plaintiff's complaint, and if you further find that the plaintiff herself was guilty of no negligence or fault contributing to her injuries, and the plaintiff has proven by a fair preponderance of the evidence all other material allegations of her complaint, then under such circumstances your verdict should be for the plaintiff." Alleged error in refusing to give each of intructions numbered 2, 11, and 13, tendered by the defendant (appellant), which we now set out:

"I instruct you that the plaintiff in this case cannot recover merely upon the showing of illness resulting from drinking Coca Cola. Negligence is not to be presumed from the mere occurrence of the illness resulting from some foreign matter in the Coca Cola. It is the law in Indiana that where an event takes place, the real cause of which cannot be traced, or is at least not apparent, it ordinarily belongs to that class of occurrences which are designated as purely accidental, and in such case, the plaintiff cannot recover.

"I, therefore, instruct you that in order for the plaintiff to recover in this case, she must show by a preponderance of the evidence, that the defendant, Coca Cola Bottling Works of Evansville, Inc., is guilty of negligence as charged in the complaint and that such negligence was the proximate cause of the accident."

* * * * *

"If you find from a preponderance of the evidence that the plaintiff became ill as the proximate result of drinking from a bottle of Coca-Cola, bottled by the defendant, as a result of the bottle containing concrete, and you further find from a preponderance of the evidence that all the reasonable inferences, as to the cause of the bottle of Coca-Cola containing concrete, have been excluded with the exception of the inference that the bottle was negligently cleaned, filled and inspected by the defendant, then I instruct you that there is an inference that the defendant was guilty of negligence in cleaning, filling and inspecting the bottle of Coca-Cola and the burden is then placed upon the defendant of proving by a preponderance of the evidence that it used due care and diligence in the conduct of its business in the cleaning, filling, and inspecting of its bottles of Coca-Cola, and in that event, if you find from a preponderance of the evidence that the defendant used due care and diligence in the cleaning, filling and inspecting of its bottles, then I instruct you that the inference of negligence on the part of the defendant is rebutted and done away with and the burden of going forward with the evidence is shifted back to the plaintiff and the plaintiff then to recover must prove by a preponderance of the evidence the negligence as charged in the complaint without any benefit of an inference or presumption of negligence on the part of the defendant."

* * * * *

"I instruct you that it is the law in Indiana that the custom and usages of well-appointed and well managed concerns in a business, or with respect to a particular matter under investigation, are competent evidence for you to consider on the question of care and diligence required in the proper conduct of such business or in the performance of the particular act under consideration so in this case I instruct you that if you find that any evidence was introduced in this case on the custom and usages of bottling plants in this community in the cleaning, filling and inspecting of the bottles you are to consider such evidence together with all the other evidence introduced in the case on the question of whether or not the defendant Coca-Cola Bottling Works of Evansville, Inc. used due care and diligence in the cleaning filling and inspecting of its bottles.

"No man is held to a higher degree of skill or care than a fair average of his trade or profession, and the standard of due care is the conduct of the average prudent man. If the cleaning, filling and inspecting of the bottles by the defendant Coca Cola Bottling Works of Evansville, Inc. was made in the usual and ordinary way, the way commonly adopted by well-kept and well managed bottling concerns in like business in this community, it cannot be held that the defendant Coca Cola Bottling Works of Evansville, Inc. was negligent and failed to use due care and diligence in the cleaning, filling, and inspection of its bottles, unless you further find that the usual and ordinary way of doing business in Evansville, Indiana, adopted

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