Grant v. Graham Chero-Cola Bottling Co.

. Clark, C. J. We need not consider more than one exception, since that goes to the whole trial, and, if erroneous, requires that the matter shall be again submitted to the jury under proper instructions. The court instructed the jury that if they found that “The defendant company used in its business appliances in approved and general use, with *258 competent and sufficient workmen, and put in such drink only that quantity of gas pressure generally and at all times put in similar drinks by reasonably prudent and careful bottlers putting up such drinks, and also used that degree of care in selecting and inspecting the bottles in question and in having'them filled and closed that would have been used by a man of reasonable care and prudence, and in putting up such drink from start to finish, used that degree of care and prudence that would have been used by a man of reasonable care and prudence in handling and preparing the said article, then the defendant would not be guilty of negligence. ) If the injury was caused under the circumstances referred to above, after the defendant had used that degree of prudence and care, then the injury to plaintiff would have resulted from an accident and would not have been caused by the negligence of the defendant company, and in that event the jury should answer the first issue No.’ ” This seems to have been the theory upon which the case was tried, and, with some changes of verbiage, is the subject of other exceptions. The change is so slight that it is not necessary to repeat the other charges excepted to. All these charges embody the same idea, that the defendant is excused if it conducted its business in the same manner that other bottlers conducted theirs, although as a matter of fact all might be dangerous. They entirely fail to furnish any standard of the measure of duty required of a reasonable and prudent man under circumstances such as these. The practice of other bottlers is referred to as such standard, but those other bottlers were, on the evidence, careless and negligent as well as the defendant, as shown by the numerous explosions of their goods. The plaintiff’s counsel contend that the defendant’s duty to the plaintiff and to the public cannot be measured by any such consideration; that the defendant owed to him the duty not to put into his hands as its customer a bottle charged with gas to that extent that it was dangerous to handle in the usual and customary method. The point is well taken. There is no evidence of what a prudent and reasonable man would do in bottling such explosive material. The evidence that other plants put up bottles of such beverages which frequently exploded in like manner during the bottling, during transportation, and in the hands of customers, was not evidence that they were reasonable and prudent men, but, on the contrary, that they were as careless and negligent in their duty to the public and to their customers as this defendant. It does not exonerate this defendant that other establishments were careless and negligent. It is very certain that these establishments are not discharging their duty to the public and to their customers in putting out goods so prepared and bottled that there are numerous explosions, liable to cause injury at any time, and which not infrequently have done so, as in Bail *259 v. Taylor, 151 N. C., 287, and Cashwell v. Bottling Works, 174 N. C., 324. If the charge of the court were correct, it would license the defendant and other dealers in these highly charge carbonated drinks to place upon the market highly dangerous merchandise, liable to explode and cause injury, such as the loss of plaintiff’s eye, to all who handle these goods in the ordinary course of business, without any liability on the part of the manufacturers. The manufacturer is liable even to the final purchaser, though there was no contractual dealings between them. Waters-Pierce Company v. De Selms, 212 U. S., 159, 178, 179; Wellington v. Downer Co., 104 Mass., 64; Wiser v. Holzman, 33 Wash, 87. It is not incumbent upon the plaintiff to show what precautions the defendant should take; that duty devolved upon the defendant, who was liable for negligence in putting such dangerous goods upon the market without sufficient precaution to make them safe. It may be that the defendant could have used wicker covering for the bottles, such as is used for champagne bottles, or wire-mesh eases, as is used for certain goods of explosive nature. These would not prevent explosions, but would prevent the fragments of the glass doing much damage; or the goods might be packed in sawdust, as is done with some goods, such as aerated water liable to explosion; or there might be some harmless ingredient put in the decoction to prevent sudden expansion, causing explosions — a device that is not unusual; or thicker bottles might be used, or there may be still other devices in this age, in which “men have sought out many inventions.” Ecclesiastes, ch. vii, v. 28. But what is the best protection is one which the defendant must ascertain and use. It is certainly no defense for the defendant, who has placed dangerous and highly explosive merchandise upon the market, which it knows has often exploded, to the injury of its customers and others, to claim that other vendors and manufacturers in their pursuit 'of gain have been as indifferent to the safety of their customers and the ,public as the defendant itself. His Honor seems to have applied to this case the rule applicable to master and servant, where the servant sues for the master’s negligence in failing to furnish a safe place to work and safe appliances, as in Hicks v. Mfg. Co., 138 N. C., 319. But that is not the maximum. It is only the minimum requirement, even, in such cases. The master is liable if he does not use such improved- appliances as are in general use. But' the master would not be held protected if there are appliances which it can ascertain and use, and which would be a protection, simply because other employers have also been negligent. This defense was set up by the railroad companies in Greenlee v. R. R., 122 ,N. C., 977; Troxler v. R. R., 124 N. C., 191; and also by defendant in Lloyd v. Hanes, 126 *260 N. C., 362, and in tbe cited cases to tbe above in tbe Anno. Ed., and clearly repudiated. Sucb rule, if adopted, would discourage all improvements and appliances for tbe protection of life and limb. It would bring to a standstill all efforts for tbe better protection of mankind from preventable danger. Tbe rule laid down in Witsell v. R. R., 120 N. C., 563, quoted from Alexander Pope, while it does not require that any one should be “Tbe first by whom tbe new is tried,” certainly makes him liable if be is among “Tbe last to lay tbe old aside.” As a matter of sound public policy and humanity, as well as of justice, tbe proposition that a negligent manufacturer putting goods on tbe market is not liable for failure to use safety preparations and appliances to guard against dangers that are known to him, simply because other manufacturers are no more careful than be, and are as reckless and regardless of tbe safety and of tbe rights of their customers, cannot be sustained. “Safety first” for tbe public. If these goods are so inherently dangerous from their frequent explosion and liability to cause damage, as by putting out tbe eye of tbe plaintiff, that they cannot be made safe, then placing them upon tbe market is indictable, as well as makes tbe manufacturer and all vendors liable to actions for any damage accruing. Ward v. Seafood Co., 171 N. C., 33. Error.