Grant v. Graham Chero-Cola Bottling Co.
| Citation | 97 S.E. 27 |
| Decision Date | 23 October 1918 |
| Docket Number | 326. |
| Parties | 176 N.C. 256, 4 A.L.R. 1090 v. GRAHAM CHERO-COLA BOTTLING CO. GRANT |
| Court | United States State Supreme Court of North Carolina |
Appeal from Superior Court, Alamance County; Bond, Judge.
Action by Charles Grant against the Graham Chero-Cola Bottling Company. Judgment for defendant, and plaintiff appeals. Error.
In an action for injuries from the explosion of bottle containing highly charged ginger ale, plaintiff has not the burden of proving what precautions defendant should have taken in the bottling.
This was an action for damages sustained from an injury causing the loss of an eye. The plaintiff alleged that the defendant sold him bottles containing ginger ale, "which on account of the excessive pressure of gas, or by reason of some defect in the bottle, were dangerous as aforesaid, and likely to explode and to cause injury to any person handling them or being near them." The defendant's answer denied all negligence and averred that, in bottling the beverage sold to the plaintiff, it had used high class standard materials and bottles; that it had a standard up-to-date plant, equipped with modern machinery; and that it used tests and checks to the end that excessive pressure should not be used. It pleaded contributory negligence on the part of plaintiff, in that plaintiff negligently submitted the bottled beverage to sudden and violent changes of temperature, which caused and was likely to cause the explosion of any bottle containing the carbonated beverage. The evidence was that the plaintiff was a merchant, and having purchased a number of bottles of ginger ale from the defendant at its factory in Graham, N. C., had placed the same in the refrigerator in his store. Shortly thereafter going to the refrigerator to get a bottle for a customer upon lifting the top, and without touching any of the bottles, one of them burst; one of the pieces striking the plaintiff's left eye, destroying the same. There was evidence that defendant put up this and another carbonated beverage in his factory, and, both prior and subsequent to the plaintiff's injury, bottles had burst injuring numerous other persons under similar circumstances. There was also evidence that these facts were known to the defendant who also knew the manner in which the plaintiff used these bottles in his business, which was the usual and customary way in which merchants purchasing such merchandise used and handled it. The plaintiff complained that the defendant was negligent in bottling the beverage in such a manner that it was dangerous to handle and defendant had failed in his duty to plaintiff in selling him bottles which on account of the excessive pressure of gas, or by reason of some defects of the bottles, were dangerous to be near or to handle. The plaintiff introduced four or five witnesses who testified to numerous explosions of both of the carbonated beverages bottled by the defendant at its plant. Some of these explosions were shown to have occurred in the bottling others, while the bottles were being crated and loaded; also, upon the road while being hauled for delivery; and, also, in the hands of customers besides the plaintiff, after delivery. These explosions were not denied by the defendant, whose evidence showed explosions of these bottles put up by it and also of other carbonated beverages put up by other plants. The defendant put on evidence that its plant at Graham was modern, up-to-date, and equipped with good machinery, and that it caused all bottles used in its business to be thoroughly and closely inspected. The plaintiff excepted to the admission and rejection of testimony, the refusal of the judge to give certain prayers for instruction, and to certain paragraphs in the charge. The jury having returned a verdict in favor of the defendant, the plaintiff appealed.
Wm. P. Bynum and R. C. Strudwick, both of Greensboro, J. J. Henderson, of Graham, and Thomas C. Carter, of Mebane, for appellant.
Long & Long and Parker & Long, all of Graham, for appellee.
We need not consider more than one exception, since that goes to the whole trial and, if erroneous, requires that the matter shall be again submitted to the jury under proper instructions. The court instructed the jury that, if they found that the defendant company used in its business appliances in approved and general use, with competent and sufficient workmen, and put in such drink only that quantity of gas pressure generally and at all times put in similar drinks by reasonably prudent and careful bottlers putting up such drinks, and also used that degree of care in selecting and inspecting the bottles in question and in having them filled and closed that would have been used by a man of reasonable care and prudence, and in putting up such drink from start to finish used that degree of care and prudence that would have been used by a man of reasonable care and prudence in handling and preparing the said article, then the defendant would not be guilty of negligence. If the injury was caused under the circumstances referred to above, after the defendant had used that degree of prudence and care, then the injury to plaintiff would have resulted from an accident and would not have been caused by the negligence of the defendant company, and in that event the jury should answer the...
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