Burger v. Renner Products Co.

WASHBURN, J.

Epitomized Opinion

First Publication of this Opinion

This was an action for negligence by Bur-against the Renner Products Co. The evidence disclosed that plaintiff was a dealer in soft drinks and that the defendant was a manufacturer of a soft drink known as “Green B” which was sold in kegs and which, to make suitable and desirable for consumption, required the addition thereto by the purchaser of a small amount of yeast placed in the keg, and that after the keg had stood open for a couple of days the bung was replaced and the product was ready for consumption. It also disclosed that such a treatment created a pressure inside the keg; that the plaintiff had been 'handling the product for some time and that a keg which he had purchased from the de-fnedant had been so treated by him under general instructions given him by the defendant at the time he began handling said product. Just as the plaintiff was about to open a keg for use the cork which was placed in the end of the barrel by the defendant for the purpose of enabling plaintiff to tap the same blew out and struck plaintiff on the eye, destroying it.

Plaintiff’s evidence also tended to show that the cork was put in by the defendant in a manner which would prevent or make impossible its blowing out. At the close of plaintiff’s case a motion to direct a verdict for defendant was sustained. An exception was taken and a motion for a new trial was filed and overruled. The journal did not show an exception to this overruling. However, the bill of exceptions showed that an exception was taken to the overruling of the' motion. In sustaining the judgment of the lower court, the Court of Appeals held:

1. An exception such as is involved in this case may be saved by entry upon the journal or by a 'hill of exception wherein the court certifies that such exception was taken.

Attorneys — Burch, Bacon & Denlinger, for Burger; Slabaugh, Young, S'ieberling, Huber & Guinther, for the Renner Products Co.

2. The fact that the keg in the case at bar was not under the control and management of the defendant and the fact that the plaintiff was an active participant in the treatment of the contents of the keg, which was under his exclusive control, rendered the doctrine of res ipsa loquitur inapplicable and the mere fact that the cork blew out did not raise a prima facie presumption of negligence on the part of defendant.

3. The doctrine of res ipsa loquitur applies only where, on proof of the occurrence and the injury, the existence of neigligent default is the more reasonable probability, and it should not be allowed to prevail where, on proof of the occurrence without more, the matter rests only in conjecture.