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caused all bottles used in its busi- put in such drink only that quantity ness to be thoroughly and closely in- of gas pressure generally and at all spected. The plaintiff excepted to times put in similar drinks by reathe admission and rejection of tes- sonably prudent and careful bottlers timony, the refusal of the judge to putting up such drinks, and also give certain prayers for instruction, used that degree of care in selectand to certain paragraphs in the ing and inspecting the bottles in charge. The jury having returned question and in having them filled a verdict in favor of the defendant, and closed that would have been the plaintiff appealed.

used by a man of reasonable care Messrs. William P. Bynum, R. C.

and prudence, and in putting up Strudwick, J. J. Henderson, and Thom

such drink from start to finish used as C. Carter, for appellant:

that degree of care and prudence The legal duty which the defendant that would have been used by a man owed to the plaintiff and to all those of reasonable care and prudence in to whom it sold its drinks was to ex- handling and preparing the said ercise ordinary care in bottling the article, then the defendant would drinks in such a way as to render them

not be guilty of negligence. If the reasonably safe and not likely to in

injury was caused under the cirjure its customers. Cashwell v. Fayetteville Pepsi-Cola

cumstances referred to above, aftBottling Works, 174 N. C. 325, 93 S.

er the defendant had used that deE. 901; 29 Cyc. 433.

gree of prudence and care, then the If the defendant placed upon the injury to plaintiff would have remarket and in the hands of the plain- sulted from an accident, and would tiff bottles charged to a dangerous de- not have been caused by the negligree with carbonic acid gas, and there

gence of the defendant company, by rendered them dangerous to be near

and in that event the jury should or to handle in the customary way, which fact was known to it and un

answer the first issue, 'No.'This known to the plaintiff, then there was

seems to have been the theory upon a breach of duty; or, in other words,

which the case was tried, and with it was guilty of negligence.

some changes of verbiage is the Heaven v. Pender, 52 L. J. Q. B. N. subject of other exceptions. The S. 702, L. R. 11 Q. B. Div. 503, 49 L. change is so slight that it is not T. N. S. 357, 47 J. P. 709, 19 Eng.

necessary to repeat the other Rul. Cas. 81; Dail v. Taylor, 151 N. C.

charges excepted to. All these 287, 28 L.R.A.(N.S.) 949, 66 S. E.

charges embody the same idea that 135; Waters-Pierce Oil Co. v. Deselms,

the defendant is excused if it con212 U. S. 159, 178, 179, 53 L. ed. 453,

ducted its business in the same 463, 464, 29 Sup. Ct. Rep. 270; Wellington v. Downer Kerosene Oil Co. 104 manner that other bottlers conductMass. 64; Weiser v. Holzman, 33 ed theirs, although as a matter of Wash. 87, 99 Am. St. Rep. 932, 73 fact all might be dangerous. They Pac. 797.

entirely fail to furnish any standMessrs. Long & Long and Parker & ard of the measure of duty required Long for appellee.

of a reasonable and prudent man Clark, Ch. J., delivered the opin- under circumstances such as these. ion of the court:

The practice of other bottlers is reWe need not consider more than

ferred to as such standard; but one exception, since that goes to

those other bottlers were, on the evithe whole trial, and, if erroneous,

dence, careless and negligent, requires that the matter shall be well as the defendant, as shown by again submitted to the jury under the numerous explosions of their proper instructions. The court in- goods. structed the jury that, if they found The plaintiff's counsel contend that "the defendant company used

that the defendant's duty to the in its business appliances in ap- plaintiff and to the public cannot be proved and general use, with com- measured by any such considerapetent and sufficient workmen, and tion; that the

tion; that the defendant owed to

burden of proof

standard of care.

(176 N. C. 256, 97 8. E. 27.) him the duty not to put into his Co. 104 Mass. 64; Weiser v. Holzhands as its customer a bottle man, 33_Wash. 87, 99 Am. St. Rep. charged with gas to that extent 932, 73 Pac. 797. that it was dangerous to handle in It is not incumbent upon the the usual and customary method. plaintiff to show what precautions The point is well taken. There is no the defendant should take; that duty evidence of what a prudent and rea- devolved upon the defendant, who sonable man would do in bottling was liable for negsuch explosive material. The evi- ligence in putting Evidence dence that other plants put up such dangerous -precautions bottles of such beverages, which goods

the

against upon

explosions. frequently explod market without sufNegligence

ed in like manner ficient precaution to make them bottling charged beverages- during the bottling, safe. It may be that the defendant

during transporta- could have used wicker covering for

tion, and in the the bottles, such as is used for hands of customers, was not evi- champagne bottles, or wire mesh dence that they were reasonable cases, as is used for certain goods and prudent men, but, on the con- of explosive nature. These would trary, that they were as careless not prevent explosions, but would and negligent in their duty to the prevent the fragments of the glass public and to their customers as doing much damage. Or the goods this defendant. It does not exon- might be packed in sawdust, as is erate this defendant that other es- done with some goods such as aërattablishments were careless and neg- ed water, liable to explosion. Or ligent. It is very certain that these there might be some harmless inestablishments are not discharging gredient put in the decoction to pretheir duty to the public and to their vent sudden expansion causing excustomers in putting out goods so plosions,-a device that is not prepared and bottled that there are unusual. Or thicker bottles might numerous explosions liable to cause be used, or there may be still other injury at any time, and which not devices in this age in which “men infrequently have done so, as in have sought out many inventions.' Dail v. Taylor, 151 N. C. 287, 28 Ecclesiastes, chap. vii. v. 28. But L.R.A.(N.S.) 949, 66 S. E. 135, what is the best protection is one and Cashwell v. Fayetteville Pepsi- which the defendant must ascertain Cola Bottling Works, 174 N. C. 324, and use. It is certainly no defense 93 S. E. 901.

for the defendant, who has placed If the charge of the court were

dangerous and highly explosive correct, it would license the defend merchandise upon the market which ant and other dealers in these high

it knows has often exploded, to the ly charged carbonated drinks to injury of its customers and others, place upon the market highly dan

to claim that other vendors and gerous merchandise liable to explode manufacturers, in their pursuit of and cause injury, such as the loss of gain, have been as indifferent to the plaintiff's eye, to all who handle safety of their customers and the these goods in the ordinary course

public as the defendant itself. of business, without any liability on

His Honor seems to have applied the part of the manufacturers. The

to this case the rule applicable to manufacturer is liable even to the

master and servant where the servfinal purchaser,

ant sues for the master's negligence -injury to though there were

in failing to furnish a safe place to consumer.

no contractual deal- work and safe appliances, as in ings between them. Waters-Pierce Hicks v. Naomi Falls Mfg. Co. 138 Co. v. Deselms, 212 U. S. 159, 178, N. C. 319, 50 S. E. 703. But that 179, 53 L. ed. 453, 463, 464, 29 Sup. is not the maximum. It is only the Ct. Rep. 270; Wellington v. Downer minimum requirement even in such

a

cases. Ainsley v. John L. Roper it does not require that anyone Lumber Co. 165 N. C. 122, 81 S. E. should be “the first by whom the 4. The master is liable if he does new is tried,” certainly makes him not use such improved appliances liable if he is among "the last to lay as are in general use. But the the old aside." As a matter of master would not be held protected sound public policy and humanity, if there are appliances which it can as well as of justice, the proposition ascertain and use, and which that negligent manufacturer would be a protection, simply be- putting goods on the market is not cause other employers have also liable for failure to use safety prepbeen negligent. This defense was arations and appliances to guard set up by the railroad companies in against dangers that are known to Greenlee v. Southern R. Co. 122 N. him, simply because other manuC. 977, 41 L.R.A. 399, 65 Am. St. facturers are no more careful than Rep. 734, 30 S. E. 115; Troxler v. he and are as reckless and regardSouthern R. Co. 124 N. C. 191, 44 less of the safety and of the rights L.R.A. 313, 70 Am. St. Rep. 580, 32 of their customers, cannot be susS. E. 550, and also by defendant in tained. Lloyd v. Hanes, 126 N. C. 362, 35 "Safety first" for the public. If S. E. 611, and in the cited cases to these goods are inherently the above in the Annotated Edition, dangerous from their frequent exand clearly repudiated. Such rule, plosion and liability to cause damif adopted, would discourage all im- age, as by putting out the eye of the provements and appliances for the plaintiff, that they cannot be made protection of life and limb. It would safe, then placing them upon the bring to a standstill all efforts for market is indictable, as well as the better protection of mankind makes the manufacturers and all from preventable danger. The rule vendors liable to actions for any laid down in Witsell v. West Ashe- damage accruing. Ward v. Moreville & S. S. R. Co. 120 N. C. 563, head City Sea Food Co. 171 N. C. 27 S. E. 127, 2 Am. Neg. Rep. 640, 33, 87 S. E. 958. quoted from Alexander Pope, while Error.

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ANNOTATION.

Liability for injuries by breaking or bursting of container in which goods are

sold.

The decided weight of authority is to the effect that the rule Res ipsa loquitur is not applicable to the breaking, bursting, or exploding of a container in which a commodity ordinarily harmless is sold.

Thus, in Wheeler v. Laurel Bottling Works (1916) 111 Miss. 442, L.R.A. 1916E, 1074, 71 So. 743, it was held that the mere fact that a bottle containing a carbonated drink which was no longer under the control of the manufacturer, and which had been placed on ice, burst when the ice chest was opened on a warm summer night, was not in itself sufficient to show negligence on the part of the bottler, so as to charge him with liability for

the resulting injury to the person opening the chest.

And in Dail v. Taylor (1909) 151 N. C. 284, 28 L.R.A.(N.S.) 949, 66 S. E. 135, an action by a dealer in soft drinks against a bottler thereof for injuries caused by the explosion of a bottle of Coca-Cola, it was held that the mere explosion of the bottle was not sufficient to carry to the jury the question of the negligence of the bottler, under the doctrine of Res ipsa loquitur, the court saying that in case of articles of merchandise such as charged soft drinks, not usually or necessarily dangerous, it would be unsafe to hold that the explosion of one single bottle of such an article, under conditions otherwise ordinary, would

of itself rise to the dignity of legal evidence sufficient, without more, to carry a case to the jury. This decision was approved and followed in Cashwell v. Fayetteville Pepsi-Cola Bottling Works (1917) 174 N. C. 324, 93 S. E. 901, where a dealer was injured by the explosion of a bottle of Pepsi-Cola.

So, in Glaser v. Seitz (1901) 35 Misc, 341, 71 N. Y. Supp. 942, where a person purchased a siphon of seltzer water from a dealer not the manufacturer, which had been filled in the usual manner and with the usual liquids, it was held that such dealer was not li. able for injuries received from an explosion of the siphon, there being no evidence of negligence on the part of the defendant other than the explosion itself. It was said that in such a case the plaintiff must affirmatively prove the existence of some defect in construction or condition of which the defendant was cognizant, or of which he ought to have known by the exercise of proper care in the premises.

But there is authority to the effect that the rule Res ipsa loquitur is applicable to the explosion of a bottle in which an ordinarily harmless beverage is sold. Thus, in Payne v. Rome CocaCola Bottling Co. (1912) 10 Ga. App. 762, 73 S. E. 1087, it was squarely held that the explosion of a bottle, the contents of which were advertised and sold as Coca-Cola, a harmless and refreshing beverage, raised an inference of negligence against someone, and that upon its being affirmatively shown that all the persons through whose hands the bottle had passed after leaving the manufacturer were free from fault, and that the condition of the bottle and its contents had not been changed, the inference of negligence, by process of elimination, must be placed against the manufacturer. This conclusion was reached in the face of the contention that the principle at the foundation of the rule Res ipsa loquitur could not be applied because the bottle was not in the possession or control of the defendant when it exploded. However, the court said that the plaintiff, to recover, must

do so upon the theory Res ipsa loqui. tur.

In a considerable number of the cases there has been some element of alleged negligence in addition to the bursting or exploding of the container, so that the general question is under what, if any, circumstances, in addition to the mere bursting of a container, liability for injuries caused by such an accident arises.

The majority of the courts which have considered this question have applied the general principles applicable to injuries arising from the marketing of commodities not inherently or intrinsically dangerous.

Thus, in Stone v. Van Noy R. News Co. (1913) 153 Ky. 240, 154 S. W. 1092, the court applied the rule that when an article is not inherently or intrinsically dangerous to health or life, a third party seeking to hold the maker liable for injuries suffered by him in the use of the article must show that the maker knew it was unsafe nd dangerous, and either concealed the defects or represented that it was safe and sound; and held that the manufacturer and bottler of a soft drink could not be held liable upon a mere showing that the bottle exploded, to the injury of an employee of the purchaser, and that the bottles of other companies often exploded, there being no proof, either that the bottle in question was overcharged, or that it was defective, or that the defendant's bottles frequently exploded. It was said that the fact that another company's bottles frequently exploded did not tend to prove that the defendant's bottles were overcharged or defective, since negligence on the part of another company could not establish negligence on defendant's part, and that the evidence being equally consistent with negligence and non-negligence, the plaintiff could not recover, because he had failed to prove negligence, and this although, as a matter of fact, the explosion might have been due to either an overcharged or a defective bottle.

So, in Bates v. Batey & Co. [1913] 3 K. B. (Eng.) 351, 82 L. J. K. B. N. S. 963, 108 L. T. N. S. 1036, 29 Times L.

R. 616, where a person was injured by 810, where a person was injured by the bursting of a bottle of ginger the explosion of a bottle containing beer, said to be not in itself a danger- a charged soft drink, which was being ous thing, which he had purchased handled in the usual and customary from a retailer, it was held that the way, and the proof tended to show manufacturer and bottler was not li- that the bottle

was improperly able for the injuries, it having pur- charged, and that the bottler, or at chased the bottle, a defect in which least his agents, possessed either actcaused the accident, from another ual or imputed knowledge of such firm; and this although it appeared overcharging, it was held that the case that the defect was one which could was one for the jury on the issue of have been discovered by the manufac- such negligent charging and whethturer and bottler by the exercise of er that negligence was the proximate reasonable care, it in fact not having cause of the injury. In this case it actual knowledge thereof."

was said that there was no issue upon And in Burnham v. Lincoln (1917) the question of the use of defective 225 Mass. 408, 114 N. E. 715, where a bottles, as the proof showed that "the servant was injured by the explosion bottles were purchased from a manof a large glass carboy in which still ufacturer whose bottles were of standspring water was sold, and from which ard grade and quality.” It was also she was pouring the same, it was held said that the case was clearly distinthat the bottler of the water was not guishable from O'Neill v. James liable for such injury, it appearing, (Mich.) infra, on the ground that in that he bought the bottle from a deal- that case there was no proof either er in good standing, that there was that the bottles in question were imnothing inherently dangerous in the

properly charged, or that the defendbottle or its contents, that the explo

ant was aware of such an overchargsion was caused by the contraction of

ing. the glass, resulting from a sudden

And in Torgesen v. Schultz (1908) change of temperature, but that such

192 N. Y. 156, 18 L.R.A.(N.S.) 726,

127 Am. St. Rep. 894, 84 N. E. 956, it an occurrence was theretofore un

was held that the question of the negheard of, the court saying that it could not be said that the defendant, by the

ligence of the bottler of aërated water, exercise of reasonable care, could

a bottle of which exploded to the inju

ry of a customer's servant, was for have foreseen the accident, or that

the jury in an action for such injuries, there was any evidence of any failure

where circulars sent out by it indiof duty on his part toward the plaintiff. So, in Guinea v. Campbell (1902)

cated its knowledge of the liability Rap. Jud. Quebec 22 C. S. 257, where

of its bottles to explode, and the evi

dence tended to show that tests apa bottle of cream soda exploded when

plied by it to its bottles were not adethe door of a refrigerator in which it

quate to justify the conclusion that was kept was opened, to the injury of a servant of the retailer thereof, it was

they would not burst under customary held that the manufacturer was not li

usage, with a knowledge of which deable for such inju whether the ac

fendant might reasonably be charged, cident was attributable to a sudden

the court applying the rule that to change of temperature or to an un

hold a person guilty of negligence and known defect in the glass, the defend- liable for injury resulting from the ant having carefully tested the bottle bursting of a container in which he up to double the pressure it would has sold a commodity not inherently have to support when filled before fill- dangerous, it must appear that he had ing it, so that it must be said to have knowledge of the dangerous character taken every reasonable precaution to of the thing sold. see that the bottle was sufficient for Again in Willey v. Mynderse (1915) the purpose intended.

165 App. Div. 620, 151 N. Y. Supp. 280, In Colyar v. Little Rock Bottling it was held that the bursting of a Works (1914) 114 Ark. 140, 169 S. W. seemingly poorly constructed bottle

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