Travis v. L. & N. R. R.

de GRAFFENRIED, J.

— The Louisville & Nashville Railroad Company maintains, for the convenience and comfort of its .passengers, dining cars on some of its passenger trains. The plaintiff, B. M. Travis, was on April 7, 1910, a passenger of the defendant railroad company and some time that evening (probably about 7 p. m.) went into the dining car attached to his train and ate some fried oysters and some scrambled eggs. Shortly thereafter (perhaps 15 or 20 minutes) he was taken sick and his symptoms all indicated that his sickness was probably due to the food which he ate while in the dining car. This sickness of the plaintiff the plaintiff claims was a serious matter. He claims that he was confined to his bed for a long time; that his life was in serious danger; that he incurred much expense in apothecary and doctors' bills; and that he endured much physical pain and mental distress. The plaintiff is of the opinion that the oysters which were served to him in the dining car were spoiled and that they were the cause of all his distress. He is of the further opinion that the defendant's servants or agents were guilty of negligence in serving him the oysters in their alleged spoiled condition, and this suit was brought by the plaintiff against the defendant for the recovery of the damages which he alleges he suffered by reason of said alleged act of negligence on the part of the servants or agents of the defendant.

1. Section 7074 of the Code of 1907 provides as follows: “Any butcher or other person who sells, or- offers or exposes for sale, or suffers his apprentice, servant, agent, or other person for him, to sell, offer, or expose for sale, any tainted, putrid, or unwholesome'fish or flesh, or the flesh of any animal dying otherwise than by slaughter, or slaughtered when diseased, for the purpose of being sold or offered for sale, must, on conviction, be fined not less than twenty nor more than two hundred dollars, and may also be imprisoned in the county jail, or sentenced to hard labor for the county for not more than six months.”

The above statute is not aimed at but Avas passed for the benefit of hotels, restaurants, and public eating-houses, as Avell as for the benefit of those who prepare and eat their food at their own homes.

A butcher, market man, or other person Avho sells fish, flesh, etc., to hotel keepers, restaurant keepers, public entertainers, or to private individuals should knoAV something about Avhen the fish or the animal whose flesh he sells Avas killed, and hoAV it has been kept since it was killed, and, as his customers must rely in large measure upon his diligence, good faith, and intelligence, the above statute was passed for the purpose of enforcing the performance of a duty Avhich the nature of such occupations creates in favor of the public. Common experience teaches that public entertainers as well as private individuals must, in a great measure, rely upon the honesty and good sense of the man from whom they purchase the supplies Avhich find their Avay through the kitchen into the dining room.

The first count of the complaint Avas draAvn upon the theory that, under the terms of the above-quoted statute, the defendant Avas liable to the plaintiff if the oysters were in fact spoiled and his sickness Avas created by reason thereof, although neither the defendant nor any of its servants or agents were guilty of any act of negligence in or about said oysters or in or about serving them to the plaintiff.

The above statute has no application to the facts of this case, and the trial court was free from error in sustaining the defendant’s demurrer to said count.

2. A restaurant keeper warrants that the food which he serves in his restaurant belongs to that class of food which is generally accepted to be fit for ordinary human consumption, and that he has used, in the selection and preparation of his food, that degree of care which the law exacts of those who-follow his occupation for a livelihood. The law requires that, in the selection of the food for his restaurant and in cooking it for his customers, he shall exercise that same degree of care which a reasonably prudent man, skilled in the art of selecting and preparing food for human consumption, would be expected to exercise in the selection and preparation of food for his own private table. If, in the selection of such food or in preparing it fotf his customer, the keeper of a restaurant does not exercise that care, and through such want of care his customer who eats the food so selected and prepared is thereby made sick, then he is liable to such customer for the damages so suffered by him. — Sheffer v. Willoughby, 163 Ill. 518, 45 N. E. 253, 34 L. R. A. 464, 54 Am. St. Rep. 483; Bishop v. Weber, 139 Mass. 411, 1 N. E. 154, 52 Am. Rep. 715.

The trial court committed no error in giving affirmative instructions to the jury on behalf of the defendant, at the written request of the defendant, as to count 3 of the complaint.

3. The only question, under the evidence in this case, for the jury was whether the dining car servants of the defendant served the plaintiff with tainted or spoiled oysters, and if so, whether this was due to negligence of the servants or agents of the defendant. There was no evidence and no claim that the oysters served the plaintiff were improperly cooked or prepared.

As, therefore, the burden was upon the plaintiff to show to the reasonable satisfaction of the jury that, through the negligence of the defendant or its agents or servants, he was served with tainted or spoiled oysters, the court, under the evidence in this case, committed no error in giving to the jury written charges 1, 2, 4, 5, 6, 7, 10. 11, 12, 13, 16, 18, and 19.

4. The evidence discloses that during the period of the plaintiff’s sickness and convalescence his employer continued to pay him his customary wages. Written charge 3 was therefore properly given to the jury.

5. Written charge 14 has been repeatedly upheld by this court.

6. We are, however, upon reconsideration of this case, of the opinion that the trial court committed reversible error in giving written charge 9 to the jury at the written request of the defendant. The charge is somewhat involved, but its plain meaning is that, if the servants of the defendant used ordinary care in the selection and purchase of the oysters and in keeping them until they were served to the plaintiff, then the defendant was not liable.

The oysters, according to the evidence, were purchased about 12 hours before they were served, and while the defendant may have exercised in the selection, purchase, and keeping of the oysters that care which a reasonably prudent man, skilled in the business of selecting and keeping fresh oysters for the table, would have exercised in the selection and.keeping of oysters for his own use, nevertheless there was evidence in the case tending to show that such a man, before serving them, would have examined them for the purpose of ascertaining if, when placed on the table or carried to the kitchen to be cooked, they were apparently in a fresh and wholesome condition. This duty the charge altogether ignores, and for this reason was vicious and should have been refused.

Moreover, the charge was calculated to mislead the jury in that it failed to define the character of the ordinary care which the law exacts of a restaurant keeper.

“Ordinary care is that care which ordinarily prudent persons would exercise under the same, like, or similar circumstances, and the want of that care is negligence.” — 6 Words and Phrases, p. 5031, and authorities there cited.

The care which the law exacts of a restaurant keeper is, as we have already said, that degree of care which a man of ordinary prudence, skilled in the art of selecting and preparing food for human consumption, would exercise in selecting and preparing food for his own private use, and not the ordinary care of a man of ordinary prudence who possesses no such knowledge. We do not mean to say that we would reverse this case if the failure to define the ordinary care which the law exacts of a restaurant keeper was the only criticism to which charge charge 9 could be subjected. That defect only gives to the charge a misleading tendency of which it could have been relieved by a counter charge on the part of the plaintiff defining the “ordinary care” which the law exacts in such cases.

This case is to be again tried, however, and we deem it proper to call attention to misleading tendency of the charge for the reason stated. •

7. Charges 8, 15, and Í7 were at least calculated to mislead the jury, and upon another trial, if the issues and the evidence are the same as they are shown by this record to have been on the former trial, they should be refused.

8. Charge 20 has a misleading tendency and should have been refused. If the word “before” in said charge is stricken from it and the word “when” is substituted therefor, the defect in the charge will be cured. The word “before,” as it appears in the charge, may refer to an inspection of the oysters made several hours be-, fore the oysters were prepared for the plaintiff.

9. The trial court refused to permit the plaintiff to testify that in his opinion his sickness was caused by the oysters that were served to him in the defendant’s dining car and that after his sickness he could not eat oysters.

We think that it was entirely competent for him to tell his symptoms after eating the oysters, but we do not think that the trial court should be'put in error for refusing to allow him to give his opinion as to the cause of those symptoms. That was a question for the jury.

There is nothing in the case of Brantley v. State, 91 Ala. 49, 8 South. 816, Knowles v. State, 80 Ala. 9, and Carl v. State, 87 Ala. 17, 6 South. 118, 4 L. R. A. 380, in conflict with these views. In these cases witnesses were permitted to testify that certain drinks did or did not have upon them the same effect as whisky. Alcohol has a peculiar wellknown effect upon human beings, and in those cases these witnesses were permitted to testify to “a shorthand rendering of the facts.” In the instant case the witness was called upon to give his opinion as to the cause of his sickness.

We are satisfied that the plaintiff is of the opinion that the dinner which he ate in the dining car was the cause of his sickness, and we feel confident that he thinks that the oysters were the sole cause of it. This being true, the sight of an oyster may cause the plaintiff unpleasantness, but that fact does not tend to show that the oysters actually made the plaintiff sick.

10. The trial court properly excluded the evidence made the basis of the eighth assignment of error. It was for the jury, and not the witness, to say whether spoiled oysters caused the sickness. Dr. Burnham might well have testified that spoiled oysters could have produced the plaintiff’s sickness, but it was not for him to say that the sickness was caused by spoiled oysters. The question as to whether the oysters were spoiled was a disputed issue of fact.

11. One Whittaker, who testified as a witness for the plaintiff qualified as an expert in the matter of handling, cooking and serving oysters. He testified, among other things, that by the casual examination of an oyster “you can tell whether it is spoiled or not; a perfect oyster is plump and of a biuish cast; a spoiled oyster is very black and the hard substance of a spoiled oyster is very hard and turns a yellow cast. * * A man drawing oysters from a receptacle with a ladle could tell whether an oyster was in good condition' or not if he was accustomed to handling oysters.”

The above being the condition of the witness’ evidence on the subject under discussion, the court committed no error in excluding from the jury the statement of this witness that the “proper thing to do when taking oysters out of a receptacle to prepare them for food is to take the oysters from the vessel, with a ladle, one by one and examine each before serving.” It was not shown that this was the custom among well-regulated hotels and restaurants, and the evidence was not given upon a subject peculiarly within the knowledge of an expert. A person who never kept a restaurant and who never served an oyster knows, if he knows a spoiled oyster when he sees it, that, if oysters are taken separately from a receptacle and examined separately, a spoiled oyster can be more readily detected than if they are taken en masse from tbe receptacle.

For tbe error pointed ont tbe judgment of tbe court below is reversed, and tbe cause is remanded.

Reversed and remanded.

All tbe Justices concur, except Dowdell, C. J., not sitting.