caused all bottles used in its business to be thoroughly and closely inspected. The plaintiff excepted to the admission and rejection of testimony, the refusal of the judge to give certain prayers for instruction, and to certain paragraphs in the charge. The jury having returned a verdict in favor of the defendant, the plaintiff appealed.

Messrs. William P. Bynum, R. C. Strudwick, J. J. Henderson, and Thomas C. Carter, for appellant:

The legal duty which the defendant owed to the plaintiff and to all those to whom it sold its drinks was to exercise ordinary care in bottling the drinks in such a way as to render them reasonably safe and not likely to injure its customers.

Cashwell v. Fayetteville Pepsi-Cola Bottling Works, 174 N. C. 325, 93 S. E. 901; 29 Cyc. 433.

If the defendant placed upon the market and in the hands of the plaintiff bottles charged to a dangerous degree with carbonic acid gas, and thereby rendered them dangerous to be near or to handle in the customary way, which fact was known to it and unknown to the plaintiff, then there was a breach of duty; or, in other words, it was guilty of negligence.

Heaven v. Pender, 52 L. J. Q. B. N. S. 702, L. R. 11 Q. B. Div. 503, 49 L. T. N. S. 357, 47 J. P. 709, 19 Eng. Rul. Cas. 81; Dail v. Taylor, 151 N. C. 287, 28 L.R.A. (N.S.) 949, 66 S. E. 135; Waters-Pierce Oil Co. v. Deselms, 212 U. S. 159, 178, 179, 53 L. ed. 453, 463, 464, 29 Sup. Ct. Rep. 270; Wellington v. Downer Kerosene Oil Co. 104 Mass. 64; Weiser v. Holzman, 33 Wash. 87, 99 Am. St. Rep. 932, 73 Pac. 797.

Messrs. Long & Long and Parker & Long for appellee.

put in such drink only that quantity of gas pressure generally and at all times put in similar drinks by reasonably prudent and careful bottlers putting up such drinks, and also used that degree of care in selecting and inspecting the bottles in question and in having them filled and closed that would have been used by a man of reasonable care and prudence, and in putting up such drink from start to finish used that degree of care and prudence that would have been used by a man of reasonable care and prudence in handling and preparing the said article, then the defendant would not be guilty of negligence. If the injury was caused under the circumstances referred to above, after the defendant had used that degree of prudence and care, then the injury to plaintiff would have resulted from an accident, and would not have been caused by the negligence of the defendant company, and in that event the jury should answer the first issue, 'No.'" seems to have been the theory upon which the case was tried, and with some changes of verbiage is the subject of other exceptions. The change is so slight that it is not necessary to repeat the other charges excepted to. All these charges embody the same idea that the defendant is excused if it conducted its business in the same manner that other bottlers conducted theirs, although as a matter of fact all might be dangerous. They entirely fail to furnish any standard of the measure of duty required of a reasonable and prudent man

This

The practice of other bottlers is referred to as such standard; but those other bottlers were, on the evidence, careless and negligent, as well as the defendant, as shown by the numerous explosions of their goods.

The plaintiff's counsel contend that the defendant's duty to the plaintiff and to the public cannot be measured by any such consideration; that the defendant owed to

Negligencebottling charged beveragesstandard of care.

him the duty not to put into his hands as its customer a bottle charged with gas to that extent that it was dangerous to handle in the usual and customary method. The point is well taken. There is no evidence of what a prudent and reasonable man would do in bottling such explosive material. The evidence that other plants put up bottles of such beverages, which frequently exploded in like manner during the bottling, during transportation, and in the hands of customers, was not evidence that they were reasonable and prudent men, but, on the contrary, that they were as careless and negligent in their duty to the public and to their customers as this defendant. It does not exonerate this defendant that other establishments were careless and negligent. It is very certain that these establishments are not discharging their duty to the public and to their customers in putting out goods so prepared and bottled that there are numerous explosions liable to cause injury at any time, and which not infrequently have done so, as in Dail v. Taylor, 151 N. C. 287, 28 L.R.A. (N.S.) 949, 66 S. E. 135, and Cashwell v. Fayetteville PepsiCola Bottling Works, 174 N. C. 324, 93 S. E. 901.

If the charge of the court were correct, it would license the defendant and other dealers in these highly charged carbonated drinks to place upon the market highly dangerous merchandise liable to explode and cause injury, such as the loss of plaintiff's eye, to all who handle these goods in the ordinary course of business, without any liability on the part of the manufacturers. The manufacturer is liable even to the

Co. 104 Mass. 64; Weiser v. Holzman, 33 Wash. 87, 99 Am. St. Rep. 932, 73 Pac. 797.

It is not incumbent upon the plaintiff to show what precautions the defendant should take; that duty devolved upon the defendant, who was liable for negligence in putting Evidencesuch dangerous precautions goods upon the explosions. market without suf

burden of proof

against

ficient precaution to make them safe. It may be that the defendant could have used wicker covering for the bottles, such as is used for champagne bottles, or wire mesh cases, as is used for certain goods of explosive nature. These would not prevent explosions, but would prevent the fragments of the glass doing much damage. Or the goods might be packed in sawdust, as is done with some goods such as aërated water, liable to explosion. Or there might be some harmless ingredient put in the decoction to prevent sudden expansion causing explosions, a device that is not unusual. Or thicker bottles might be used, or there may be still other devices in this age in which "men have sought out many inventions." Ecclesiastes, chap. vii. v. 28. But what is the best protection is one which the defendant must ascertain and use. It is certainly no defense for the defendant, who has placed dangerous and highly explosive merchandise upon the market which it knows has often exploded, to the injury of its customers and others,

to claim that other vendors and manufacturers, in their pursuit of gain, have been as indifferent to the safety of their customers and the public as the defendant itself.

His Honor seems to have applied to this case the rule applicable to master and servant where the servant sues for the master's negligence in failing to furnish a safe place to work and safe appliances, as in Hicks v. Naomi Falls Mfg. Co. 138 N. C. 319, 50 S. E. 703. But that is not the maximum. It is only the minimum requirement even in such

cases. Ainsley v. John L. Roper Lumber Co. 165 N. C. 122, 81 S. E. 4. The master is liable if he does not use such improved appliances as are in general use. But the master would not be held protected if there are appliances which it can ascertain and use, and which would be a protection, simply because other employers have also been negligent. This defense was set up by the railroad companies in Greenlee v. Southern R. Co. 122 N. C. 977, 41 L.R.A. 399, 65 Am. St. Rep. 734, 30 S. E. 115; Troxler v. Southern R. Co. 124 N. C. 191, 44 L.R.A. 313, 70 Am. St. Rep. 580, 32 S. E. 550, and also by defendant in Lloyd v. Hanes, 126 N. C. 362, 35 S. E. 611, and in the cited cases to the above in the Annotated Edition, and clearly repudiated. Such rule, if adopted, would discourage all improvements and appliances for the protection of life and limb. It would bring to a standstill all efforts for the better protection of mankind from preventable danger. The rule laid down in Witsell v. West Asheville & S. S. R. Co. 120 N. C. 563, 27 S. E. 127, 2 Am. Neg. Rep. 640, quoted from Alexander Pope, while

it does not require that anyone should be "the first by whom the new is tried," certainly makes him liable if he is among "the last to lay the old aside." As a matter of sound public policy and humanity, as well as of justice, the proposition that a negligent manufacturer putting goods on the market is not liable for failure to use safety preparations and appliances to guard against dangers that are known to him, simply because other manufacturers are no more careful than he and are as reckless and regardless of the safety and of the rights of their customers, cannot be sustained.

"Safety first" for the public. If these goods are so inherently dangerous from their frequent explosion and liability to cause damage, as by putting out the eye of the plaintiff, that they cannot be made safe, then placing them upon the market is indictable, as well as makes the manufacturers and all vendors liable to actions for any damage accruing. Ward v. Morehead City Sea Food Co. 171 N. C. 33, 87 S. E. 958. Error.

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 liable 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 loquitur.

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 and 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 the bursting of a bottle of ginger beer, said to be not in itself a dangerous thing, which he had purchased from a retailer, it was held that the manufacturer and bottler was not liable for the injuries, it having purchased the bottle, a defect in which caused the accident, from another firm; and this although it appeared that the defect was one which could have been discovered by the manufacturer and bottler by the exercise of reasonable care, it in fact not having actual knowledge thereof."

810, where a person was injured by the explosion of a bottle containing a charged soft drink, which was being handled in the usual and customary way, and the proof tended to show that the bottle was improperly charged, and that the bottler, or at least his agents, possessed either actual or imputed knowledge of such overcharging, it was held that the case was one for the jury on the issue of such negligent charging and whether that negligence was the proximate cause of the injury. In this case it was said that there was no issue upon the question of the use of defective bottles, as the proof showed that "the bottles were purchased from a manufacturer whose bottles were of standard grade and quality." It was also said that the case was clearly distinguishable from O'Neill James

And in Burnham v. Lincoln (1917) 225 Mass. 408, 114 N. E. 715, where a servant was injured by the explosion of a large glass carboy in which still spring water was sold, and from which she was pouring the same, it was held that the bottler of the water was not liable for such injury, it appearing that he bought the bottle from a dealer in good standing, that there was nothing inherently dangerous in the bottle or its contents, that the explosion was caused by the contraction of the glass, resulting from a sudden change of temperature, but that such an occurrence was theretofore unheard of, the court saying that it could not be said that the defendant, by the exercise of reasonable care, could have foreseen the accident, or that there was any evidence of any failure of duty on his part toward the plaintiff. So, in Guinea v. Campbell (1902) Rap. Jud. Quebec 22 C. S. 257, where a bottle of cream soda exploded when the door of a refrigerator in which it was kept was opened, to the injury of a servant of the retailer thereof, it was held that the manufacturer was not liable for such injuries whether the accident was attributable to a sudden change of temperature or to an unknown defect in the glass, the defendant having carefully tested the bottle up to double the pressure it would have to support when filled before filling it, so that it must be said to have taken every reasonable precaution to see that the bottle was sufficient for the purpose intended.

In Colyar v. Little Rock Bottling Works (1914) 114 Ark. 140, 169 S. W.

v.

(Mich.) infra, on the ground that in that case there was no proof either that the bottles in question were improperly charged, or that the defendant was aware of such an overcharging.

And in Torgesen v. Schultz (1908) 192 N. Y. 156, 18 L.R.A. (N.S.) 726, 127 Am. St. Rep. 894, 84 N. E. 956, it was held that the question of the negligence of the bottler of aërated water, a bottle of which exploded to the injury of a customer's servant, was for the jury in an action for such injuries, where circulars sent out by it indicated its knowledge of the liability of its bottles to explode, and the evidence tended to show that tests applied by it to its bottles were not adequate to justify the conclusion that they would not burst under customary usage, with a knowledge of which defendant might reasonably be charged, the court applying the rule that to hold a person guilty of negligence and liable for injury resulting from the bursting of a container in which he has sold a commodity not inherently dangerous, it must appear that he had knowledge of the dangerous character of the thing sold.

Again in Willey v. Mynderse (1915) 165 App. Div. 620, 151 N. Y. Supp. 280, it was held that the bursting of a seemingly poorly constructed bottle