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filled with highly charged water con- Weiser v. Holzman (1903) 33 Wash. stituted prima facie evidence of neg- 87, 99 Am. St. Rep. 932, 73 Pac. 797, ligence on the part of the manufactu- where the court, proceeding upon the rer and bottler in an action for injuries theory that bottled champagne cider resulting to the purchaser's bartender was a dangerous explosive, held that from such explosion, the court saying an employee of a purchaser of a botthat it was for the jury to say whether tle could recover from the manufacor not the manufacturer was negligent turer for injuries caused by its exploin failing to make suitable tests of the sion, and stated that the rule was that strength of the bottle.

one who sells to another an article And in Dail v. Taylor (1909) 151 intrinsically dangerous, knowing it N. C. 284, 28 L.R.A.(N.S.) 949, 66 S. to be such, without notice to the purE. 135, it was held that while evidence chaser, is responsible to any person of the explosion of a single bottle of who, without fault on his part, is inCoca-Cola was not in itself sufficient jured thereby. It was also said that to prevent a nonsuit in an action for this rule does not rest upon any privity damages by the purchaser of a bottle, of contract or contractual relation beinjured by an explosion thereof, such tween the person selling the article fact, together with evidence that many and the person injured, but upon the other bottles put up by the defendant principle that the original act of sellhad exploded during the several pre- ing such an article is wrongful, and ceding months, was sufficient to carry that the wrongdoer is, therefore, reto the jury the question of the bottler's sponsible to anyone injured for the negligence. And the Dail Case was consequences of his wrongful act. followed and approved in Cashwell The question of the liability of a v. Fayetteville Pepsi-Cola Bottling manufacturer or bottler for injuries Works (1917) 174 N. C. 324, 93 S. E. resulting from the breaking or burst901, which involved injuries to a pur- ing of a container in which goods have chaser for resale, caused by the ex- been sold has also been answered plosion of a bottle of Pepsi-Cola while where the contention was that there being handled by him. This conclu- was no liability for the reason that sion was again approved and adhered there was no privity of contract beto in the reported case (GRANT V. tween such manufacturer or bottler GRAHAM CHERO-COLA BOTTLING CO. and the person injured. Upon this ante, 1090). It was further held in phase of the question the rule seems the latter case that a bottler of to be that to charge the seller of a charged soft drinks for the trade can- commodity not ordinarily or intrinnot relieve itself from liability for in- sically dangerous with liability for juries to a customer, caused by the injuries to a person with whom no conbursting of a bottle of ginger ale, by

tractual relation exists, caused by the proof that it used in its business ap- breaking or exploding of the container pliances in approved and general use,

in which such commodity was sold, with competent and sufficient work- it must appear that such seller had men, that it used only the amount of

knowledge of the dangerous condition gas pressure used by reasonably pru- of the container and its contents. This dent and careful bottlers, and that the

rule was stated in O'Neill v. James same was true as regards selection

(1904) 138 Mich. 567, 68 L.R.A. 342, and inspection of the bottles used, 110 Am. St. Rep. 321, 101 N. W. 828, since the practice of others engaged in 5 Ann. Cas. 177, 17 Am. Neg. Rep. 561, a similar business is not necessarily wherein it was held that a manufacthe standard of care required, which, turer and bottler of champagne cider, of course, is the case where it appears an article of commerce usually harmthat such others put up bottles which less in itself, was not liable for inoften exploded, showing negligence on juries to a purchaser's bartender, their part.

caused by the explosion of a bottle However, a somewhat different view thereof, where it appeared that the was taken in the Washington case of cider was made by proper machinery, and it did not appear that it was over- CHERO-COLA BOTTLING Co. ante, 1090) charged, or that the defendant knew the court ruled that one negligently that for some reason, such as over- putting up a highly charged beverage charging or defect, the bottle was in bottles was liable for injuries to a peculiarly liable to such an accident. customer, caused by the bursting of And in Colyar v. Little Rock Bottling a bottle, even though there were no Works (1914) 114 Ark. 140, 169 S. W. contractual dealings between them. 810, it was held that a manufacturer And the same rule has been applied and bottler of charged soft drinks can- where the article negligently marketed not be relieved of any negligence in was regarded as intrinsically danso overcharging a bottle that it burst, gerous.

See Weiser v.

Holzman to the injury of an employee of the (Wash.) as set out supra. purchaser, on the ground of a lack of Applying the rule that the omission privity of contract, where the injury to perform a statutory duty creates occurred while such employee was statutory negligence, it has been held handling the bottle in the usual and that violation of the Federal Food and necessary course of the purchaser's Drug Act by misbranding a bottle of business, which handling was neces- hair tonic and introducing same into sarily within the contemplation of the interstate commerce is evidence of parties when the sale was made, and negligence for the jury in an action the defendant was charged with no- for the death of the purchaser of the tice that the bottle was overcharged, bottle, which resulted from an exploand that such condition would prob- sion thereof. Armour v. Wanamaker ably cause it to explode. And in the (1913) 120 C. C. A. 529, 202 Fed. 423. reported case (GRANT V. GRAHAM

G. J. C.

FOSS-SCHNEIDER BREWING COMPANY, Piff. in Err.,

V.
SOPHIA ULLAND.

Ohio Supreme Court - February 5, 1918.

(97 Ohio St. 210, 119 N. E. 454.)

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Water accumulation in cellar removal.

1. Reasonable care does not require an owner of city property to permit flood waters to accumulate in his cellar, to the destruction of property stored therein, in order to equal or neutralize the hydrostatic pressure, and thereby prevent the flow of the waters permitted to accumulate upon the adjoining premises.

[See note on this question beginning on page 1104.] Trial directed verdict absence of plained of were the proximate cause of evidence.

the injury. 2. In an action for damages claimed [See 20 R. C. L. 166-168.] to have been caused through the neg- Adjoining owners excavation li. ligence of the defendant, it is not error ability. for the trial court to direct a verdict 3. Where the owner of a lot in a for the defendant, where the plaintiff municipality excavates to a depth offers no evidence tending to prove greater than 9 feet below the curb of either that the defendant was negli- the street on which his lot abuts, and gent in the particulars averred in the such excavation causes damage to any petition, or that the negligent acts com- wall, house, or other building upon the

Headnotes by the COURT.

(97 Ohio St. 210, 119 N. E. 454.) lot adjoining thereto, he is liable in a deprive him of any right that he would civil action to the parties injured to otherwise have to protect his property the full amount of such damage, re- from the flood waters of an extraorgardless of whether he is or is not dinary and unprecedented flood. guilty of any negligence in making

Water flood right to repel. such excavation or in the construction

5. The owner of property has the and maintenance of any wall placed right to repel the invasion of his premtherein.

ises by flood waters of an extraor[See 1 R. C. L. 384-386.)

dinary and unprecedented flood, if in – protection from flood.

doing so he exercises reasonable care 4. Where such excavation to a depth and caution, and does not director greater than 9 feet below the curb increase the force of these flood waters grade has not caused the damages com- against the adjoining property, other plained of, the fact that the owner of than the increase incident to their failthe lot has caused such excavation to ure to find access to his premises. be made upon his premises does not [See 1 R. C. L. 375.]

ERROR to the Court of Appeals for Hamilton County to review a judgment reversing a judgment of the Court of Common Pleas, dismissing a petition filed to recover damages for injury to plaintiff's property, alleged to have been caused by defendant's negligence. Reversed. Statement by Donahue, J.:

the north line of its property imOn the 20th day of May, 1913, mediately adjoining the property of Sophia Ulland filed a petition in the the plaintiff, which cellar and foundcommon pleas court of Hamilton ation walls, through the negligence county, Ohio, against the Foss- of the defendant, were permitted to Schneider Brewing Company, a cor

break and crack in many places, in poration, averring in substance: such manner as to allow the earth, That she was the owner of a certain sand, and gravel from plaintiff's lot lot or parcel of land on the west side to slip and slide through said walls of Freeman avenue, in the city of into the defendant's cellar, thereby Cincinnati, Ohio, adjoining the

adjoining the undermining the building upon property owned by the defendant plaintiff's lot, so that, by reason corporation. That there had been thereof, on or about the 31st day of erected upon the lot owned by the March, 1913, the support under plaintiff a 21-story brick building, plaintiff's building was undermined and that the foundation under this and removed and the entire foundabuilding extended downward to a tion wall and south wall gave way, depth of 9 feet, to which depth the destroying the plaintiff's premises. cellar was excavated. That prior to That on the 28th day of March, the 31st day of March, 1913, the 1913, the city of Cincinnati, Ohio, walls of the building, foundation, was visited by a flood, the highand cellar were solid and in safe water level of which reached above condition to support said building; the level of the cellar floor of the that the defendant company's prop- plaintiff's premises, and far above erty adjoined her lot immediately to the cellar level and far above the exthe south, and many years prior to

cavation of the defendant's cellar. the 31st day of March, 1913, defend- That on the 29th day of March, ant had caused the ground to be ex- 1913, the defendant installed in its cavated to a depth of 18 or 20 feet cellar immediately adjoining the below the curb line of Freeman ave- plaintiff's premises large siphon or nue, and for many years main- other force pumps and operated tained a cellar to that depth in said them for the purpose of preventing excavation, and entirely along the the water from filling its cellar; and line of plaintiff's property; and that that the defendant operated these the defendant had constructed a pumps in such a careless, negligent stone foundation or cellar wall along manner, and with such force and power, as to cause the earth, sand, judgment of the common pleas court and gravel on plaintiff's lot to be and remanded the cause for a new thrown into the defendant's cellar trial. This proceeding in error is through and under the walls main- brought in this court to reverse the tained by it, thereby undermining judgment of the court of appeals. the building upon plaintiff's lot, and

Messrs. Bettinger, Schmitt, & Kreis, removing the support of the founda

for plaintiff in error: tion of plaintiff's building, causing The flood of 1913 was an act of the foundation walls and the walls God. of her building to collapse and fall Urbana Egg Case Co. v. Nypano R. into the excavation, to her damage Co. 16 Ohio N. P. N. S. 321; Erie R. in the sum and amount of $6,000. Co. v. Kohler, 26 Ohio C. C. N. S. 337. That on the 30th day of March, 1913,

The doctrine of lateral support does

not extend to flood waters, or to any the tenants of the plaintiff notified

waters that are not naturally in the the defendant that its acts were

soil. causing the earth, sand, and gravel Nichols v. Marsland, L. R. 10 Exch. to be forced into its cellar, endanger- 255; 1 Thomp. Neg. p. 86; Central ing the plaintiff's premises, and re- Trust Co. v. Wabash, St. L. & P. R. quested it to cease operating the Co. 57 Fed. 441; Daniels v. Ballantine, pumps; but that defendant paid no. 23 Ohio St. 532, 13 Am. Rep. 264. attention to said notice and warn- Messrs Powell & Smiley for defending, and did not discontinue the

ant in error. operation of its pumps.

Donahue, J., delivered the opinion To this petition the defendant of the court: filed an answer, in which it admitted Counsel, both in their briefs and plaintiff was the owner of the prem- oral arguments, have not confined ises described in the petition, with themselves to the issues joined in the the improvements thereon situated, pleadings. While there is an averand that it was the owner and in ment in the plaintiff's petition that possession of the real estate adjoin the defendant caused its premises ing and immediately south thereof; immediately adjoining those of the that it caused these premises to be plaintiffs to be excavated to a depth excavated to a depth of 18 to 20 feet of 18 or 20 feet below the curb grade below the curb line on Freeman ave- of Freeman avenue, and for many nue, and has for many years main- years has maintained a cellar in this tained a cellar in this excavation the excavation the entire depth of plainentire depth of plaintiff's lot; and tiff's lot, and that the defendant that a number of years ago it con- operated pumps for the purpose of structed a stone wall along its north preventing the water from filling its line, immediately adjoining the cellar, yet there is no averment eiplaintiff's property. And it denied

And it denied ther that the excavation to a depth each and every other allegation con- greater than 9 feet below the curb tained in the petition.

grade, or the refusal on the part of Upon the trial of the cause to a the defendant to permit its cellar jury, and at the close of the evidence to fill with water, caused the damintroduced by the plaintiff, counsel ages to plaintiff's property. On the for the defendant moved the court to contrary, she specifically avers in instruct the jury to return a verdict her petition that the damage was for the defendant; which motion caused to her property by reason of was sustained. Exceptions were the negligence of the defendant in noted, motion for new trial filed and two particulars: overruled, and judgment entered First. That the defendant negliupon the verdict, dismissing the gently permitted its adjoining wall plaintiff's petition at her cost. To to break and crack in many places; this judgment, error was prosecut- that the gravel and earth from ed in the court of appeals of Hamil plaintiff's lot was thereby caused to ton county, which court reversed the slip and slide through these cracks (97 Ohio St. 210, 119 N. E. 454.) and breaks, to such an extent as to about 18 inches from the cellar floor, undermine the foundation of her up to about 3 or 3 feet high, for a building.

distance of 20 feet back from the Second. That on the day preced- curb line, and that "there was some ing the injury to plaintiff's proper- little sand coming through on Sunty, the defendant installed in its day, very little, very slight, because cellar, immediately adjoining plain the crevice was not large enough to tiff's premises on the south, large let any sand through scarcely.” siphon or other force pumps, and While the interest of this witness operated these pumps in such a care- was adverse to the interest of the less, negligent manner, and with plaintiff, he was the only witness such force and power, as to cause having knowledge of these facts or the earth, sand, and gravel on plain that testified upon this subject. tiff's lot to be thrown into the cellar Plaintiff under the statute was perof the defendant through and under mitted to cross-examine him to the the walls maintained by it, thereby same extent as if he had been called undermining the building on plain- by the defendant. tiff's lot and removing the support This is the only evidence offered of its foundation.

by the plaintiff tending to prove any The defendant in its answer de- defect in this wall. There is no evinies these averments of negligence. dence whatever in this record that It clearly appears from the evidence this wall at all other times and unoffered on behalf of the plaintiff der all ordinary conditions was not that the waters that washed the amply sufficient for the protection sand, earth, and gravel from under of plaintiff's property. This defendthe foundation of her building were ant, in the construction and mainpart of the waters of a general flood tenance of its wall, was not required in this and adjoining states in the to anticipate such an extraordinary latter part of March, 1913. This and unprecedented flood, and, even flood was so unprecedented in its had it done so, it could hardly have extent and character, so disastrous built a wall that would have withand devastating in its nature, that stood such a devasting force. If, it is an epoch in the history of the however, it could be said that this state. It is beyond dispute that it evidence that the flood waters of this was "an act of God,” which human extraordinary flood forced their way foresight could not have foreseen or through the crevices in this wall, reasonably anticipated, and against carrying "some little sand coming which human power could not de- through on Sunday, very little, very fend. In this respect there is no slight, because the crevice was not controversy in this case, either in large enough to let any sand through the record or arguments and briefs scarcely," tended to prove that this of counsel.

wall was in such a defective condiIn support of this first averment tion that it would not resist the of negligence, the plaintiff offered waters of an ordinary flood, notthe evidence of John George Brox- withstanding the fact that for many terman, who was the only witness years it had met every requireperhaps who had any knowledge of ment, not only of ordinary floods, the facts. He testified that this wall but of the peculiar formation of the adjoining plaintiff's premises was earth and soil in that locality, yet constructed of solid stone masonry,

the further evidence of Broxterman 3 or 34 feet in thickness, exten ng

clearly demonstrates that the condithe entire depth of the excavation

tion of the wall was not even a conand below the cement floor in the tributing, much less a proximate, driveway cellar; that on Sunday, cause of the injury. the day before the collapse of plain- This witness further testified that tiff's building, water was coming early the following morning (Monthrough the crevices of this wall day morning), about two or two and

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