Nerney v. Lonsdale Bakery Co.

POULIOT, J.

This is an action brought by the plaintiff to recover compensation for injuries alleged to have been received while biting into a cake manufactured by the defendant, and is before the Court on plaintiff’s motion for a new trial after a jury had returned 'a verdict for, the defendant.

On .April 5th, the plaintiff ordered, and" received', from the defendant a cake which was to be used in the celebration of her mother’s birthday. The cake was delivered, in a cardboard box, to the plaintiff at ■ her place of employment. She paid for it and placed it in her locker. The box was opened at her home, pieces were cut from the ■cake 'and what was left of it was wrapped in -a 'napkin and placed in a cake tin. : The'next morning, the plaintiff took a piece of it and, on biting it heard something snap in her mouth. She discovered she had broken a tooth.

The defendant produced the man who delivered the cake, but offered no testimony as to its care in the preparation of the foodstuffs that it sold. During the trial, in the cross-examination of the plaintiff and of the dentist who treated her, and in argument to the jury, it contented itself with claiming that it was impossible for the plaintiff to have been injured as she claimed. By this conduct of the case, the defendant, for all practical purposes, admitted the plaintiff’s claim of negligence, and relied solely on its contention that the plaintiff was not damaged. Even if the plaintiff received no serious injury, on the evidence she was entitled to receive at least nominal damages.

For plaintiff: Ernest D. Shein. For defendant: Quinn, Kernan & Quinn.

The Court feels that the jury erred in returning a verdict for the defendant and plaintiff’s motion for a new trial is granted.