Bainbridge Coca-Cola Bottling Co. v. Miller

Bell, J. 1. In this suit to recover damages for an illness which the plaintiff claimed to have suffered as a result of drinking a beverage sold by the defendant and containing a poisonous foreign substance which caused the plaintiff to become sick and nauseated, there was some evidence to warrant the inference of negligence on the part of the defendant, as charged in the petition, and it can not be held, as a [764] matter of law, either that this inference was conclusively rebutted or that it indisputably appeared that the plaintiff, by ordinary care, could have avoided the consequences of the defendant’s negligence after it was, or should have been, discovered by him. Decided November 17, 1928. A. B. Conger, for plaintiff in error. P. D. Rich, contra. 2. The fact that the trial judge, during his charge to the jury and while stating the contentions of the parties, misread the allegation of the petition that plaintiff “was unable to eat anything for several hours,” by substituting for “hours” the word “days,” did not constitute such error as to require a new trial. Under the facts as they appear in the record, the jury could not have been misled by such verbal inaccuracy, resulting evidently from a mere slip of the tongue. Turner v. Elliott, 127 Ga. 338 (4) (56 S. E. 434). 3. In determining whether an excerpt from a charge is subject to the criticism that it contains an expression or intimation of opinion as to what has or has not been proved, the excerpt should be considered in the light of the entire charge. Upon application of this principle the extract from the court’s charge in this case, as excepted to upon the ground that it expressed an opinion on the facts, did not constitute reversible error. Olliff v. Howard, 33 Ga. App. 778, 782 (127 S. E. 821); Seaboard Air-Line Ry. Co. v. Shensky, 36 Ga. App. 163 (4) (136 S. E. 178). 4. Fairly construed, the court’s charge did not submit to the jury an issue as to whether the beverage contained some other poisonous matter than that alleged in the petition. 5. There was no merit in any ground of the motion for new trial. Judgment affirmed. Jenkins, P. J., and Stephens, J., ooneur.