Phillips Ex Rel. Phillips v. Pepsi-Cola Bottling Co.

125 S.E.2d 30 (1962) 256 N.C. 728

Kathryn PHILLIPS, by her Next Friend, W. R. Phillips,
v.
PEPSI-COLA BOTTLING COMPANY and Ed Owens.

No. 394.

Supreme Court of North Carolina.

April 18, 1962.

R. B. Dawes and James E. Ramsey, Roxboro, for plaintiff appellant.

Reade, Fuller, Newsom & Graham, by A. H. Graham, Jr., and Josiah S. Murray, III, Durham, for Bottling Company.

Charles B. Wood, Roxboro, for Ed Owens.

RODMAN, Justice.

Plaintiff testified: "I bought six Pepsi-Colas and they were in a Pepsi-Cola carton which had a handle on it." We treat this as meaning the bottled drinks were in the carton when the purchase was made, notwithstanding the testimony of plaintiff's adult companion: "I am not sure whether Mr. Owens gave them a carton."

Plaintiff testified: "I carried the Pepsi-Cola in my right hand and carried ice cream in a paper bag in my other hand. I was carrying the carton by its handle. I walked out of the store and down in front of Mr. Mundy's store, then I heard something like a shot and then I felt a pain in my leg. * * *" Mundy's store is only a short distance from the store of Owens. Mundy testified: "Just as she got in front of my store, a bottle dropped out of the carton like a shot and exploded."

The complaint is seemingly bottomed on the theory that defendants have negligently failed to perform a duty owing to plaintiff. Manifestly plaintiff's testimony is insufficient to establish negligence unless the mere fall of the bottle from the container brings into play the doctrine of res ipsa loquitur, imposing on defendants the duty of explaining how and why the bottle fell. "For the doctrine to apply the plaintiff must prove (1) that there was an injury, (2) that the occurrence causing the injury is one which ordinarily doesn't happen without negligence on someone's part, (3) that the instrumentality which caused the injury was under the exclusive control and management of the defendant." Jackson v. Neill McKay Gin Co., 255 N.C. 194, 120 S.E.2d 540. "There is no presumption of negligence from the mere fact that there has been an accident and an injury." Brewer v. Green, 254 N.C. 615, 119 S.E.2d 610. The breaking or explosion of a bottled drink in the possession of the injured party is not sufficient to create a prima facie case of negligence. Styers v. Winston Coca-Cola Bottling Co., 239 N.C. 504, 80 S.E.2d 253; Enloe v. Charlotte Coca-Cola Bottling Co., 208 N.C. 305, 180 S.E. 582; Lamb v. Boyles, 192 N.C. 542, 135 S.E. 464; 49 A.L.R. 589; Dail v. Taylor, 151 N.C. 284, 66 S.E. 135, 28 L.R.A.,N.S., 949.

Plaintiff argues here that she is entitled to recover from the defendants upon an implied warranty that the carton which she used to transport the bottled drinks was in fact fit for that purpose. There is no evidence as to the kind of container. Was it metal or wood or paper? It is common knowledge that bottled drinks of the kind purchased by plaintiff are frequently put in paper or cardboard containers for convenience in transportation. If it be assumed that the container which plaintiff used was of that character, the evidence is still devoid of any explanation as to why the bottle fell. True, plaintiff alleges that it fell because of a "rotten bottom." But there is nothing to establish that fact, nor is there anything to explain why the bottom, if rotten, was in that condition. There is evidence by one of plaintiff's witnesses that the bottled drinks were taken from an icebox and put in the container.

The fact that a bottle fell to the pavement from a container which plaintiff was handling is no more sufficient to establish breach of a warranty as to the condition of the container than it is to establish negligence in the manufacture. Prince v. Smith, 254 N.C. 768, 119 S.E.2d 923.

Affirmed.