Corin v. S. S. Kresge Co.

• Decision Date: 27 April 1933
• Docket Number: No. 41.,41.
• Citation: 166 A. 291
• Parties: CORIN v. S. S. KRESGE CO.
• Court: New Jersey Supreme Court

166 A. 291

CORIN

v. S. S. KRESGE CO.

No. 41.

Court of Errors and Appeals of New Jersey.

April 27, 1933.

Syllabus by the Court.

The presence of broken glass in a plate of coleslaw served at a restaurant, unexplained, justifies a finding of negligence on the part of servants of the restaurant keeper who mixed and served the dish in question.

Appeal from Supreme Court.

Suit by Henrietta M. Corin against the S. S. Kresge Company. From a judgment in favor of the plaintiff (159 A. 799, 10 N. J. Misc. 489), the defendant appeals.

Affirmed.

Raymond Dawson, of Jersey City (Edwin F. Smith, of Jersey City, on the brief), for appellant.

Isadore Klenert, of Paterson, for respondent.

PER CURIAM.

The trial was before a district court without a jury. That court refused a nonsuit when plaintiff rested, and at the conclusion of the evidence defendant moved for judgment on the ground that there was no evidence of negligence. That motion was denied, and these two rulings are the foundation of the appeal.

We concur in the conclusion of the Supreme Court that the evidence justified an inference of negligence in preparing the coleslaw eaten by plaintiff in defendant's restaurant, and in which, according to the testimony, there was a small quantity of broken glass. One piece plaintiff gave to the waitress in attendance. It was not produced at the trial. Plaintiff further testified that she "felt a lot in her teeth."

The coleslaw was prepared by the defendant's employees. According to the testimony, fresh cabbage is stripped, washed, and sliced by a machine, mixed with green peppers and seasoning, mayonnaise added, and the whole put into a white porcelain crock over night, then set in a white porcelain salad dish on the counter. The mayonnaise, at that time according to the testimony, was purchased in wooden tubs.

It is not suggested that the tub of mayonnaise may have contained broken glass. It is suggested that some glass may have fallen into the growing cabbage, but that hypothesis seems remote. This is not a case of dispensing a more or less standard article in the condition in which it comes from the manufacturer, but of mixing several ingredients at the defendant's place and by its employees, at a restaurant where crockery and glassware naturally abound and where breakage of glass naturally occurs. If the cabbage, green peppers, and mayonnaise were free of foreign substances, the presence of glass—or perhaps a chip of porcelain resembling glass—in the...