O'Neill v. James

• Decision Date: 22 December 1904
• Citation: 101 N.W. 828,138 Mich. 567
• Parties: O'NEILL v. JAMES.
• Court: Michigan Supreme Court

101 N.W. 828

138 Mich. 567

O'NEILL v. JAMES.

Supreme Court of Michigan

December 22, 1904

Error to Circuit Court, Houghton County; Albert T. Streeter, Judge.

Action by Andrew R. O'Neill against Joseph James. There was a judgment for plaintiff, and defendant brings error. Reversed.

Gray Haire & Stone, for appellant.

P. H O'Brien and W. A. Burritt, for appellee.

MOORE C.J.

This is an action brought against the defendant to recover damages for the loss of an eye, which the plaintiff claims was caused by the negligence of the defendant. At the time of the injury the plaintiff was in the employ of his brother, in the capacity of bartender. The defendant was a bottler of champagne cider, and had been for 20 years prior to the injury. The liquid was charged with carbonic acid gas. Some time prior to February 28, 1902, the defendant sold a quantity of champagne cider to the plaintiff's employer, and the cider, when delivered, was put in the ice box. On the 28th day of February, 1902, the plaintiff took a bottle of said cider out of the ice box, and claims that while holding it in his hand and before any force was applied to it, the bottle exploded, and was blown into a large number of fragments, and a piece of the glass from the bottle struck plaintiff in his eye and destroyed it. The plaintiff recovered a substantial judgment. The defendant has brought the case here by writ of error.

At the conclusion of plaintiff's proofs, and also when the testimony was all in, defendant asked the judge to direct a verdict. This the judge declined to do. A motion was then made for a new trial. In denying that motion, the trial judge states the theory of the parties substantially as follows: 'The pleadings which made the case, which was left to the jury, asserted on the part of the plaintiff that the defendant negligently had sent out an article, in itself dangerous, in place of one in itself safe; that the article furnished by the defendant was a dangerous explosive. The defendant in the case attempted to show that champagne cider--the liquid furnished by the defendant--was a nonintoxicating, harmless drink. The plaintiff made no attempt to show that any deleterious or poisonous substance was put into the liquid, so as to render it at all harmful as a drink; but the plaintiff introduced testimony which he claims tended to establish that the champagne cider sent out by the defendant had become a dangerous explosive, and that it had become so through the negligence of the defendant. The questions to be determined on this motion are whether there was evidence to sustain the case made by the pleadings on the part of the plaintiff, sufficient to cause the case to be submitted to the jury, and, if there was, whether the verdict of the jury is against the clear weight and preponderance of the evidence. Before the plaintiff rested, he introduced testimony to show that he had sustained an injury by the explosion of a bottle of champagne cider which was manufactured and furnished by the defendant. There was also testimony on the part of experts, without objection on the part of the defendant, that champagne cider, manufactured in the usual way, with the ordinary pressure, was safe. There was also testimony that, if the pressure was increased beyond a certain limit, then the article became dangerous, and dangerous because of the likelihood of an explosion. The experts also testified that an explosion would not occur, under the circumstances as detailed in this case, unless the bottle had been overcharged, and would be likely to occur, had the bottle been overcharged. * * * The defendant introduced testimony to show that he had been engaged in the manufacture of champagne cider for a long term of years; that he had never known a bottle to explode under similar circumstances to those testified to on the part of the plaintiff; that the gas with which the water used in making the champagne cider was charged was explosive. The defendant testified that he had never charged champagne cider at a pressure greater than sixty pounds for commercial purposes. His bottler (the one who charged the bottle which caused the injury to O'Neill) had been in his employ some ten years, engaged in the same work. The testimony on the part of the defendant and the testimony on the part of the plaintiff tended to show that the apparatus used by the defendant was the ordinary equipment of such establishments. The defendant urged that the testimony was uncontradicted that no champagne cider was ever bottled by him for sale at a pressure higher than sixty pounds to the square inch, and that there was no evidence whatever of any negligence on the part of the defendant. While the testimony of the defendant and of his bottler was positive that no champagne cider had ever been bottled for sale at a higher pressure, if there were other testimony in the case from which a jury might reasonably infer that this pressure had been exceeded, the question became one which ought to be submitted to the jury for its decision. Opposed to this testimony was the testimony of the experts, in which they maintained that the explosion could have occurred for no reason other than an overcharge.'

It was the claim of defendant the explosion, instead of being caused by an overcharge, might have been caused as follows: (1) The contact of the human hand with the cold bottle taken from the ice box, upon a small area of the cold glass, would have caused a sudden expansion of the small area of the glass, and a consequent cracking of the bottle; (2) the warm air of the room might have caused the same result, independent of the hand; (3) the pressure brought to bear upon the bottle by inserting its neck into the socket of the corkscrew, or by striking the bottle on the corkscrew; (4) perchance a cracked bottle from some other cause; or (5) a bottle inherently weak by reason of varying thickness of glass, or the like.

We think with reference to the question of negligence, the court was right in holding that, in view of the testimony upon this branch of the case, the issue should be submitted to the jury. See Merryman v. Hall (Mich.) 99 N.W. 27; Schoepper v. Chemical Co., 113 Mich. 585, 71 N.W. 1081.

There is, however, a much more serious question in the case. The testimony on both sides is that champagne cider, bottled in such bottles as were used by defendant, at a pressure of 60 pounds or under, is a harmless ordinary article of commerce usually kept for sale where soft drinks are sold. The record also discloses that defendant did not himself charge the bottle which did the mischief. There is nothing to indicate he ever saw it. The testimony of the bottler is that it was charged in the usual way, and sent out in the usual course of trade, and that he had no knowledge that it was improperly charged. Indeed, his testimony is that it was not improperly charged. There is no testimony tending to establish that defendant had any knowledge that the bottle was overcharged when it left his place of business, or from which an inference could be properly drawn that he had such knowledge. Under this state of facts, counsel for defendant claim: 'The point we raise is that where one is engaged in the manufacturing and selling of an article of commerce harmless in itself, as the proofs show that champagne cider is, when manufactured and bottled in the ordinary manner, he cannot be held liable to a third person, who stood in no privity of contract with him, because perchance one bottle did, for some reason, burst, in the absence of proof of knowledge of vendor of the defect.' In reply to this claim, counsel for plaintiff say: 'The defendant contends that the plaintiff cannot recover because there was no contractual relation between the parties. It seems to us that it is a sufficient answer to this contention to say that if the defendant knowingly or negligently sent out an article which was of itself a dangerous explosive, and it exploded in the hands of the plaintiff, and injured him, without fault on his part, the defendant is liable,...