Ash v. Childs Dining Hall Co.

Rugg, C. J. This is an action of tort. It rests solely upon allegations of negligence. The burden of proving that the proximate cause of the plaintiff’s injury was the negligence of the defendant or its servants or agents rested on the plaintiff. It is; well settled that the duty rests upon the keeper of an inn, restaurant or other eating place to use due care to furnish wholesome food, fit to eat. Failure in this respect resulting in injury is. foundation for an action for negligence. Bishop v. Weber, 139 Mass. 411, 417. Crocker v. Baltimore Dairy Lunch Co. 214 Mass. 177. Wilson v. J. G. & B. S. Ferguson Co. 214 Mass. 265. Tomlinson v. Armour & Co. 46 Vroom, 748, 762. The testimony of the plaintiff tended to show that she received injuries from the presence of a tack in a piece of blueberry pie which she was eating while a guest of the defendant in its restaurant. Her description was that "there lodged in her throat, in her right tonsil, a very thin small-headed tack, the head a little mite larger than a pin head ... . it was'a little longer than a. [89] carpet tack.” It was not the same shape as a carpet tack. “It was thin, long and a very small head.” The head was flat. “It was a black tack.” The pie was made by the defendant on its premises and served as food by its waitress to the plaintiff. The manager of the defendant testified that at that time its blueberries came in ordinary quart berry baskets, made of wood in which were tacks “hardly an eighth of an inch long, with a flat head, and that this was the first time in the eighteen years that he had been in the business that he had seen a tack in blueberries.” There was other testimony to the effect that a high degree of care was exercised in the preparation of the blueberries for the pies. That is laid on one side, as it may not have been credited by the jury. But disbelief of the defendant’s testimony as to the precautions used by it cannot take the place of evidence of negligence. There is nothing in the record from which it can be inferred that the harm to the plaintiff resulted directly from any failure of duty on the part of the defendant. The precise cause of her injury is left to conjecture. It may as reasonably be attributed to a condition for which no liability attaches to the defendant as to one for which it is responsible. Under such circumstances the plaintiff does not sustain the burden of fastening tortious conduct on the defendant by a fair preponderance of all the evidence, and a verdict ought to be directed accordingly. Leavitt v. Fiberloid Co. 196 Mass. 440, 444. The tack was very small. It was so tiny that it readily might have become embedded in a blueberry. If so, its color and shape were such that it would naturally escape the most careful scrutiny. It might as readily have stuck into a blueberry before it came to the possession of the defendant as afterwards. The carelessness of some person for whom the defendant in no way was responsible might have caused its presence in the pie. The maker of the basket, some previous owner of the berry, or some other third person, is as likely to have been the direct cause of the tack being in the pie as the defendant or those for whose conduct it is liable. The facts are quite different from those disclosed in Hunt v. Rhodes Brothers Co. 207 Mass. 30. These suggestions make it plain that this is not a case for the application of res ipso loquitur. That doctrine may be invoked [90] in the case of an unexplained accident which, according to the common experience of mankind, would not have happened without fault on the part of the defendant. St Louis v. Bay State Street Railway, 216 Mass. 255, 257. It does not avail where the cause of the injury is just as likely to have been the fault of another. The mere fact of injury does not show negligence. The burden of proof resting upon the plaintiff to establish that fact must be sustained by evidence either direct or inferential. Waters-Pierce Oil Co. v. Deselms, 212 U. S. 159,176. The case falls within the class of which Crocker v. Baltimore Dairy Lunch Co. 214 Mass. 177, Kusick v. Thorndike & Hix, Inc. 224 Mass. 413, and Burnham v. Lincoln, 225 Mass. 408, are examples. See in this connection Hasbrouck v. Armour & Co. 139 Wis. 357. No question arises as to the contractual relations between the parties. In the opinion of a majority of the court, the entry must be Exceptions sustained.