Howard v. Lowell Coca-Cola Bottling Co.

• Decision Date: 03 March 1948
• Citation: 322 Mass. 456,78 N.E.2d 7
• Parties: HOWARD v. LOWELL COCA-COLA BOTTLING CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

322 Mass. 456

78 N.E.2d 7

HOWARD

v.LOWELL COCA-COLA BOTTLING CO.

Supreme Judicial Court of Massachusetts, Middlesex.

March 3, 1948.

Exceptions from Superior Court, Middlesex County; Joseph E. Warner, Judge.

Action by Ruth Howard against Lowell Coca-Cola Bottling Company for injuries sustained by plaintiff when a bottle of coca-cola purchased from an automatic vending machine broke in plaintiff's hand. Verdict for plaintiff, and defendant brings exceptions to denial of its motion for a directed verdict on second count of declaration based on negligence and plaintiff brings exception to allowance of defendant's motion for directed verdict on first count based on breach of implied warranty.

Plaintiff's exceptions overruled, defendant's exceptions sustained, and judgment for defendant.

Before LUMMUS, C. J., and DOLAN, RONAN, WILKINS, SPALDING, and WILLIAMS, Jj.

L. Novick, of Lowell, for plaintiff.

F. M. Qua, of Lowell, for defendant.

DOLAN, Justice.

This is an action of contract or tort to recover compensation for personal injuries sustained by the plaintiff when a bottle of coca cola, which she had purchased from an automatic vending machine owned and operated by the defendant, broke while in her hand. The declaration is in two counts, the first being in contract based on breach of implied warranty under the sales act. G.L. (Ter.Ed.) c. 106. The second count alleges negligence on the part of the defendant. At the close of the evidence the judge allowed the defendant's motion for a directed verdict on the first count subject to the plaintiff's exception, and denied the defendant's motion for a directed verdict on the second count subject to its exception. The jury returned a verdict for the plaintiff on that count.

The jury would have been warranted in finding the following facts: On October 29, 1943, the plaintiff purchased a bottle of coca cola from an automatic vending machine owned and operated by the defendant in the room of a factory in Lowell where the plaintiff was employed. No one other than the defendant through its agents or servants had anything to do with the loading of the machine with bottles of coca cola, the taking out of the coins deposited in the machine, or its maintenance. The key to the machine was in the exclusive control of the defendant. Upon the deposit of a five cent piece, a mechanism is released and a bottle of coca cola slides from an inside cradle into a chute, approximately six to seven inches long, partly made of metal, and down the chute, striking the bottom of the chute, which is made of rubber. The defendant does not make but purchases the coca cola syrup and the bottles. The bottles are made entirely of glass. At times employees of the defendant who were delivering coca cola for use in the machine had been seen placing cases of coca cola one on top of another. The approximate weight of each case is thirty-eight pounds. One case placed on another would come in contact with the caps or crowns of the bottles in the lower case. The machine is inspected by the defendant's servants at irregular intervals, which may be as far apart as a year. The plaintiff having deposited a five cent piece in the machine, a bottle of coca cola came down the chute. She had her lunch in her right hand, picked up the bottle in her left hand, proceeded to a room which was about fifteen or twenty feet from the machine, and sat down there with three coworkers. Obtaining an opener from one of them she held it in her right hand; ‘without touching it to the bottle which was still in her left hand, she made a motion to open the bottle and when she did she saw blood all over her hands.’ The bottom of the bottle fell into her lap. The cap was still on the top of the bottle. From the instant that she picked up the bottle from the machine she did not strike it against anything nor did it come in contact with any object. As a result of the accident the plaintiff's hand was cut.

The defendant has argued that there is no evidence of any negligence on the part of the defendant with respect to the bottlingprocess, or to indicate that the vending machine was defective, or to show that the bottle in question had been damaged by being in a case upon which another case of coca cola had been superimposed; that the evidence discloses that the bottle was in the sole possession and control of the plaintiff when it broke; and that the cause of the breaking was purely a matter of surmise or conjecture.

The plaintiff had the burden of proving that the accident was caused by negligence of the defendant. This was an affirmative burden and could not be left to surmise, conjecture or imagination. The plaintiff, however, was not bound to exclude every possible cause for her injuries other than that of negligence of the defendant, and was only required to show by a preponderance of the evidence a greater likelihood that her injuries resulted from an act of negligence for which the defendant is responsible rather than from a cause for which it is not liable. Rocha v. Alber, 302 Mass. 155, 157, 158, 18 N.E.2d 1018;Sargent v. Massachusetts Accident Co., 307 Mass. 246, 250, 251, 29 N.E.2d 825;Flynn v. Growers Outlet, Inc., 307 Mass. 373, 377, 30 N.E.2d 250;Mucha v. Northeastern Crushed Stone Co. Inc., 307 Mass. 592, 596, 30 N.E.2d 870. Upon the facts disclosed by the evidence, however, we are of opinion that the jury could not have inferred properly that the plaintiff's injuries were caused by negligence of the defendant.

There was no evidence in the present case to warrant a finding that the contents of the bottle had been too highly charged with carbonic gas, the evidence being simply that it broke in the plaintiff's hand, that while holding it she looked at her hand and saw that it was covered with blood, and that the bottom of the bottle dropped into her lap. There was no evidence to show that the breaking of the bottle was due to any negligence of the defendant at its bottling plant or elsewhere, nor to warrant a finding that any defect in the bottle that the jury might have found caused it to break should have been discovered by the defendant by reasonable inspection. Burnham v. Lincoln, 225 Mass. 408, 410, 114 N.E. 715;Roscigno v. Colonial Beacon Oil Co. 294 Mass. 234, 200 N.E. 883;Stodder v. Coca-Cola Bottling Plants, Inc., Me., 48 A.2d 622, and cases, cited; Loebig's Guardian v. Coca-Cola Bottling Co., 259 Ky. 124, 126, 81 S.W.2d 910.

At best the evidence in the...