Davis v. Coca-Cola Bottling Co.

DbviN, J.

Plaintiff’s action for damages for the injury caused by the bursting of bottles containing Coca-Cola which had been bottled and sold by the defendant was based on allegations of negligence, and defendant’s appeal presents only the question whether sufficient evidence of negligence on the part of the defendant was offered to carry the case to the jury. Error is assigned in the denial of defendant’s motion for judgment of nonsuit. , i

It is well settled in this jurisdiction that proof of injury caused by the explosion of a bottle containing a carbonated beverage, alone, would not be sufficient to make out a case of actionable negligence. The doctrine of res ipsa loquitur does not apply. Dail v. Taylor, 151 N. C., 284, 65 S. E., 1101; Cashwell v. Bottling Works, 174 N. C., 324, 93 S. E., 901; Lamb v. Boyles, 192 N. C., 542, 135 S. E., 464; Perry v. Bottling Co., 196 N. C., 175, 145 S. E., 14.

But in cases where compensation is sought for injury caused by such explosion, the rule established by this Court is that when it is made to appear that other bottles filled by the same bottler, under similar circumstances, about the same time, have exploded, there is afforded some evidence of negligence sufficient to be submitted to the jury, as it would thus form the basis for the permissible inference that the bottler had not exercised that degree of care required of him under the circumstances. Enloe v. Bottling Co., 208 N. C., 305, 180 S. E., 582; Grant v. Bottling Co., 176 N. C., 256, 97 S. E., 27; Cashwell v. Bottling Works, supra; Fitzgerald v. R. R., 141 N. C., 530, 54 S. E., 391. And this court has been careful, before permitting plaintiff’s case to be submitted to the jury, to require that plaintiff offer evidence of other instances of bottles filled by defendant exploding under “substantially similar circumstances and reasonable proximity in time.” Ashkenazi v. Bottling Co., 217 N. C., 552, 8 S. E. (2d), 818. As tending to show actionable negligence on the part of the defendant, it is competent for plaintiff to show that products produced by the defendant under substantially similar conditions and sold by it at about the same time contained the same defects, such similar instances being allowed to be offered as some evidence of defendant’s negligence at .time of plaintiff’s injury “when accompanied by proof of substantially similar circumstances and reasonable proximity in time.” Tickle v. Hobgood, 216 N. C., 221, 4 S. E. (2d), 444; McLeod v. Bottling Co., 212 N. C., 671, 194 S. E., 82; Enloe v. Bottling Co., 208 N. C., 305, 180 S. E., 582; Broadway v. Grimes, 204 N. C., 623, 169 S. E., 194.

Under the rule laid down by this Court and uniformly followed in the cases cited, we conclude that the plaintiff has offered sufficient evidence to require submission of his case to the jury, and that defendant’s motion for judgment of nonsuit was properly denied.

No error.