Dail v. Taylor

• Decision Date: 18 November 1909
• Parties: DAIL v. TAYLOR.
• Court: North Carolina Supreme Court

66 S.E. 135

151 N.C. 284

DAIL v. TAYLOR.

Supreme Court of North Carolina

November 18, 1909

Appeal from Superior Court, Pamlico County; Cooke, Judge.

Action by E. M. Dail against Lee J. Taylor, trading as the Crown Bottling Works. From a judgment of nonsuit, plaintiff appeals. Reversed.

A plaintiff suing for a physical injury negligently inflicted need not establish his case by direct or positive proof, but the issue must be submitted to the jury where facts are shown from which a fair and reasonable inference of negligence may be made.

There was evidence tending to show that at the time of the injury and some time prior thereto, defendant was engaged in the business of manufacturing, bottling, and sale of a beverage called "Coca-Cola" and other soft drinks; that plaintiff and a Mr. Mann were engaged in business and dealt in soft drinks, and from time to time bought quantities of these soft drinks of defendant, and resold same by retail to their customers.

E. M Dail, plaintiff, speaking more directly to the occurrence testified as follows: "I am plaintiff. Was injured on the 27th June, 1907, in my store at Oriental. I and Mr. Mann were engaged in business, and we dealt in soft drinks. I had no idea of any danger in handling the bottles. A customer came in and wanted to purchase an article. In order to get to that article, I had to remove a full box of Coca-Cola which I had purchased the week before from the defendant, and had only opened that morning. I stooped over and took out two of the Coca-Cola bottles, and I stooped over to take hold of the third bottle, and, as soon as I grasped the bottle and started to draw it out, it exploded, and particles of the bottle struck me in the eye, and destroyed the sight. The bottles were in a crate, crown end down. I bought the crate the week before (this was Monday) from the defendant."

Mark Hargett, a witness for plaintiff, testified as follows: "I know the plaintiff. I bought some Coca-Cola from him that was bottled by defendant, and carried it home the latter part of the week before Mr. Dail got hurt. The defendant's name was on the bottle. Q. What happened to any of the bottles? A. On the Saturday some customers came to my little store, and wanted a drink of Coca-Cola. I took up a bottle and went to pull off the cap, and the neck of the bottle came off, and on Sunday I went to take out a bottle from the crate, and it exploded, and a piece of the glass cut my arm, and a piece went through my shirt and stuck in my shoulder, and a piece struck a girl's shoe that was standing 15 feet away, went through the shoe, and cut her foot to the bone. I did not strike the bottle against anything nor shake it up. I just turned it over. When it was in the crate the small end was down."

C. S. Weslett testified: "I live in Bayboro. I have bought Coca-Cola in this town in bottles which were made, Crown Bottling Works, Lee J. Taylor, all along for the last two years. Nothing happened to those I bought. But all along for the last two years I have seen those bottles explode in the store. I mean the Lee J. Taylor and Crown Bottling Works bottles. I examined the labels of one or two of those that I saw explode, and they had Crown Bottling Works and Lee J. Taylor marked on them. I don't call the pulling off a part of the mouth when opening a bottle an explosion. I don't remember more than but two of them exploding. That was during last year and this. One was when I was taking a bottle from the ice box. The other one was an explosion by one in the crate."

At the close of plaintiff's evidence, defendant moved to nonsuit under the Hinsdale act. Motion allowed, and plaintiff excepted and appealed.

D. L. Ward, T. W. Davis, and H. L. Gibbs, for appellant.

Simmons, Ward & Allen, for appellee.

HOKE J.

The plaintiff in this case was the purchaser of the goods, or one of them, and therefore the many authorities cited as to when and to what extent a vendor is responsible to third persons for negligent default in the sale of goods do not in strictness apply, and, there being no evidence tending to show a breach of warranty, express or implied, the appeal presents the question whether there is sufficient evidence of actionable negligence as between vendor and vendee to carry the case to the jury; that is, has there been legal evidence offered tending to show a breach of some legal duty on the part of defendant incident to the contract relation between them, and not contained within the terms and stipulations of the agreement. 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, 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...