Ashkenazi Ex Rel. Ashkenazi v. Nehi Bottling Co.

BARNHILL, J., dissenting. WINBORNE, J., concurs in dissent. *Page 553 This is a civil action by an ultimate consumer to recover of a bottler damages resulting from the explosion of a bottle of Royal Crown Cola. At the conclusion of the plaintiff's evidence the court sustained defendant's motion for judgment as in case of nonsuit, C. S., 567, and from judgment accordingly, the plaintiff appealed, assigning error. There was sufficient evidence to establish that while the plaintiff was carrying a bottle of Royal Crown Cola, which had been bottled and sold by the defendant to a merchant, who in turn had sold it to her sister, the bottle exploded and injured the plaintiff. The sole question presented by the exceptions and briefs filed is whether there was sufficient evidence of other instances of bottles bottled by the defendant exploding under "substantially similar circumstances and reasonable proximity in time" to bring the case within the principles enunciated in Dail v. Taylor, 151 N.C. 285; Cashwell v. Bottling Works,174 N.C. 324; Perry v. Bottling Co., 196 N.C. 175; Enloe v. BottlingCo., 208 N.C. 305. The allegation is, and the evidence tends to prove, that the bottle exploded in the hands of the plaintiff on 21 September, 1939, and cut and injured her face. The witness Camp testified in effect that in the month of April, 1939, he was gathering up Coca-Cola bottles from an ice box, in Cherryville, Gaston County, and that under the Coca-Cola bottles there was a crate of Royal Crown Cola, and as he reached down to pick up a Coca-Cola bottle a Royal Crown Cola bottle exploded and cut his finger. The witness Sharpe testified in effect that one day in August, 1939, while the salesman of the defendant was placing Royal Crown Cola in his ice box in Charlotte, two of the bottles exploded, and scattered glass. The testimony of A. B. Fitzgerald, taken on adverse examination by the plaintiff, was introduced in evidence and was to the effect that he was president and general manager of the defendant corporation, and had been since its formation in 1925, and he knew that if bottles were hot and were put in cold water with syrup in them they would explode — too drastic a change of temperature would make them explode on the machine. "They have exploded on the machine ever since I have been bottling." "The general conditions under which we manufacture, bottle and distribute the beverage known as Royal Crown Cola in Mecklenburg *Page 554 County have not changed any in the last four years, and we are using the same methods of preparation and bottling that we used in the last four years." We are of the opinion, and so hold, that this evidence when construed in the light most favorable to the plaintiff, as it must be upon demurrer thereto, is sufficient to carry the case to the jury, and that the court erred in granting the motion for and entering a judgment as in case of nonsuit. Reversed.