Hampton v. Thomasville Coca-Cola Bottling Co.

ScheNCK, J. The exceptive assignments of error urged upon appeal assail the action of the court in refusing to grant the defendant’s motion *332 of judgment as of nonsuit made upon tbe plaintiff’s resting ber evidence and renewed at tbe close of all tbe evidence. O. S., 561. There was evidence tending to sbow that on 30 September, 1933, tbe plaintiff bought from Deaton's Store coca-cola which bad been bottled and sold for tbe retail trade by tbe defendant, tbe Thomas-ville Coca-Cola Bottling Company; that upon drinking a small portion thereof tbe plaintiff became nauseated and sick; and that upon examination it was found that tbe bottle containing tbe coca-cola bought and drank by tbe plaintiff bad in it a foreign substance that bad not mixed with tbe coca-cola, and that looked and smelled like paint or varnish, and that this substance was thick upon tbe bottom of tbe bottle, and on one side of tbe bottle inside there was a lump about tbe size of tbe end of tbe thumb. Tbe decisions of this Court are to tbe effect that one who prepares in bottles or packages foods, medicines, drugs, or beverages, and puts them on tbe market, is charged with tbe duty of exercising due care in tbe preparation of these commodities, and under certain circumstances may be liable in damages to tbe ultimate consumer. Corum v. Tobacco Co., 205 N. C., 213, and cases there cited. Tbe decisions of this Court are also to tbe effect that while in establishing actionable negligence on tbe part of tbe manufacturer, bottler, or packer, tbe plaintiff is not entitled to call to bis aid tbe doctrine of res ipsa loquitur, be is nevertheless not required to produce direct proof thereof, but may introduce evidence of other relevant facts from which actionable negligence on tbe part of tbe defendant may be inferred. Similar instances are allowed to be shown as evidence of a probable like occurrence at tbe time of tbe plaintiff’s injury, when accompanied by proof of substantially similar circumstances and reasonable proximity in time. Broadway v. Grimes, 204 N. C., 623; Enloe v. Bottling Co., ante, 305, and cases there cited. One R. O. Liverman testified as follows: “I have never seen any coca-cola manufactured by tbe Thomasville Ooca-Oola Bottling Company shortly before or after this occasion with matches in it, but did see some looked like white paint splashed in tbe inside. It was white, white splotches. It was inside tbe bottle.” Tbe sole question involved in tbe instant case is whether this testimony of Liverman, when read in connection with tbe evidence tending to show other pertinent facts, was sufficient to carry tbe case to tbe jury on tbe issue of tbe defendant’s actionable negligence. Since in our opinion this testimony, when considered in connection with other testimony, furnishes more than a scintilla of evidence tending to establish tbe plaintiff’s contentions, and since all of tbe evidence must be interpreted most favorably for tbe plaintiff, we are constrained to bold that tbe case was properly submitted to tbe jury. Gates v. Max, 125 N. C., 139; Lamb v. Ferry, 169 N. C., 436; Corum v. Tobacco Co., supra. Affirmed.