Natale v. Pepsi-Cola Co.

• Decision Date: 17 February 1959
• Docket Number: PEPSI-COLA
• Citation: 7 A.D.2d 282,182 N.Y.S.2d 404
• Parties: Joseph NATALE, an infant by Oscar Natale, his Guardian ad Litem, Plaintiff-Respondent, v.COMPANY, Pepsi-Cola Matropolitan Bottling Co., Inc., Defendants, and Great Atlantic & Pacific Tea Co., Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 404

182 N.Y.S.2d 404

7 A.D.2d 282

Joseph NATALE, an infant by Oscar Natale, his Guardian ad Litem, Plaintiff-Respondent, v. PEPSI-COLA COMPANY, Pepsi-Cola Matropolitan Bottling Co Inc., Defendants, and Great Atlantic & Pacific Tea Co., Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

Feb. 17, 1959.

Norman C. Mendes, New York City, of counsel (John J. Cullen, New York City, on the brief; Mendes & Mount, New York City, attorneys) for defendant-appellant.

Jacob D. Fuchsberg, New York City, of counsel (Abraham I. Nelson, New York City, attorney) for plaintiff-respondent.

Before RABIN, J. P., and FRANK, VALENTE, McNALLY, and BERGAN, JJ.

McNALLY, Justice.

In an action for damages for injuries resulting from a bursting soda bottle, defendant-appellant Great Atlantic & Pacific Tea Co. appeals from a judgment for plaintiff in the sum of $200,291.25 after trial before the court and a jury.

The accident occurred on April 24, 1951. The left eye of the infant plaintiff was injured so that it was subsequently removed. The injury was caused by the bursting of a bottle of Pepsi-Cola which plaintiff stated he was attempting to open on the metal hasp of a gate of Public School 102, 113th Street between First and Second Avenues in the Borough of Manhattan.

The plaintiff testified that he heard a sizzling noise made by the gas escaping from the bottle; that the bottle burst without coming in contact with the iron uprights. There is other evidence in the record to the effect that the iron hasp utilized by plaintiff in attempting to remove the cap was 3/16ths of an inch thick, swivelled on a hinge and set closely between two rigid uprights. It would seem that the internal pressure of the bottle had diminished before its alleged explosion. The record offers no explanation as to how it was possible that the bottle which was capable of withstanding the internal pressure of the gas up to the time when the cap was in the process of being removed and the gas beginning to escape should suddenly explode under reduced pressure.

We hold that the verdict is against the weight of the credible evidence and since a new trial is directed we find it necessary to address ourselves to certain assignments of error.

The sole ground of liability presented to the jury by the learned Trial Judge was the alleged breach of the implied warranty of the merchantability of the bottle. During the trial the complaint was dismissed as to defendants Pepsi-Cola Company and Pepsi-Cola Metropolitan Bottling Co., Inc., and plaintiff was permitted, over defendant's objection, to amend his complaint so as to increase the demand for damages from $100,000 to $250,000.

On the issue of liability, we hold the court's charge to be too narrow since it eliminated from the jury's consideration the effect of the handling of the bottle between the time of purchase and the time of the occurrence. The charge concerned itself entirely with the handling of the bottle by the infant plaintiff immediately prior to the occurrence. However, there was evidence of the manner of its handling between the time of purchase and immediately prior to the occurrence which should have been submitted to the jury together with a charge conveying to them the fact that if the careless handling of the bottle between the time of its purchase and the time of the occurrence was an essential cause of the occurrence and injuries, then the plaintiff is not entitled to recover. Fredendall v. Abraham & Straus, Inc., 279 N.Y. 146, 18 N.E.2d 11.

The...