Loebig's Guardian v. Coca-Cola Bottling Co.

• Decision Date: 19 April 1935
• Citation: 259 Ky. 124
• Parties: Loebig's Guardian v. Coca-Cola Bottling Co.
• Court: United States State Supreme Court — District of Kentucky

259 Ky. 124

Loebig's Guardian v. Coca-Cola Bottling Co.

Court of Appeals of Kentucky. Common Pleas Branch, Second Division.

Decided April 19, 1935.

1. Negligence. — Doctrine of res ipsa loquitur assumes existence of prima facie negligence from mere occurrence of accident and resulting injury.

2. Negligence. — Doctrine of res ipsa loquitur obtains only where existence of negligence is reasonably deductible from circumstances, and should not prevail where, on mere proof of occurrence, cause still is conjectural.

3. Negligence. — In action against manufacturer for injury sustained when Coca-Cola bottle exploded, evidence that bottle exploded

because defective, without proof that manufacturer could have discovered defect by exercise of ordinary care, held insufficient to establish negligence, and manufacturer was not liable, since not an insurer of bottle.

Appeal from Jefferson Circuit Court

W.S. KAMMERER and W.W. DOWNING for appellant

EUGENE R. ATTKISSON for appellee.

OPINION OF THE COURT BY JUDGE STITES.

Affirming.

This is an appeal from a judgment of the Jefferson circuit court rendered pursuant to an instructed verdict given at the close of the plaintiff's testimony.

The injury complained of in the petition was the loss of the sight of the plaintiff's left eye, resulting, as is shown by the evidence, from the explosion of a bottle of Coca-Cola, late in the afternoon of September 10, 1932.

The bottle was contained in a case of Coca-Cola which left the defendant's plant in Louisville, on one of its trucks, at about 1:30 p.m., on the afternoon of the accident. After being carried through the streets for several hours, the case was delivered at Rueve's Bakery on Thirty-Second street, in the city of Louisville, between 4 and 5 o'clock in the afternoon, by the defendant's driver, who placed the case, together with several others, on the floor of the bakery, beside a cooler. It was shown that the temperature on the afternoon in question was in the neighborhood of 85 degrees Fahrenheit.

Shortly after the Coca-Cola was delivered, plaintiff, who was a boy of about seventeen, met with some friends of about the same age in the bakery, as a loitering place and for the purpose of making certain purchases. Some of the boys had on occasion dropped bottle caps into an empty milk bottle as a sort of game, and on the occasion in question one of the plaintiff's companions lifted the bottle of Coca-Cola from the case and handed it to the plaintiff, with the suggestion that he drop the Coca Cola bottle into the empty milk bottle. Plaintiff turned the Coca-Cola bottle upside down, and inserted its neck into the top of the empty milk bottle, without bringing the two bottles into contact, and then handed it back to his companion. As his companion was in the act of replacing the Coca-Cola bottle in its case, the bottle exploded, scattering glass, and causing a sliver of glass to enter plaintiff's left eye.

Plaintiff proved that the bottle involved was carefully handled by the driver of the truck from the time that it left the defendant's plant until it was delivered at...