Gorman-Gammil Drug Co. v. Watkins

SOMERVILLE, J. The appellee, a dairyman, sued the appellant, a druggist, in an action on the case for negligently delivering to plaintiff five pounds of common salt in lieu of five pounds of Epsom salts, as ordered, which, as alleged, proximately caused the death of plaintiff’s cow to which he administered a dose of it— two pounds, as the evidence shows. Defendant pleaded the general issue and a special plea of contributory negligence. Whether or not defendant was guilty of error or negligence in supplying plaintiff with an article radically different in fact from the article ordered, and whether or not that negligence, if found, proximately produced the untimely demise of plaintiff’s cow, were disputed questions of fact to be determined by the jury. But that plaintiff ivas himself guilty of the grossest negligence, which was immediately productive of the animal’s death, is a clear conclusion of law from which there is no escape. There is no confusing similarity in appearance of common salt and Epsom salts. Both are household articles in common use, and, more or less familiar to all men of ordinary intelligence and experience. Moreover, plaintiff was a dairyman of long experience, and quite familiar with the use of' both articles in the course of his business. He was skilled in the art of bovine healing by a practice of 30 years upon his own animals, and he habitually administered to them Epsom salts for the relief of those digestive disorders to which they were frequently subject. He saw and intimately handled this salt, which was not labeled Epsom salts, and which was in a bag show [655] ing on its face that it came from defendant’s “seed and dairy” store, a separate and distinct branch of its business, from which plaintiff customarily bought his but-' ter salt for use in his dairy. It was not at all like Epsom salts, and on his cross-examination plaintiff demonstrated his ability to readily distinguish it from that article. The ordinary conduct of rational beings must be governed by common prudence and common sense, and he who fails in this to his own hurt cannot justly charge the ills that follow to the antecedent and remote fault of another, albeit such remote fault supplies the condition without which the injury would not have occurred. The result here complained of was plainly due to the inexcusable carelessness and folly of plaintiff, and to allow him to recover damages from defendant under the circumstances shown would certainly insult -the common sense of mankind. The verdict of the jury was contrary to the law and the evidence, and should have been set aside by the trial court on the motion of defendant. The instance of a man who ‘swallowed a pound of salt in a pint of ale, and died in a few hours, with, all the symptoms of irritant poison,” read from a medical book, was fundamentally illegal and inadmissible-as evidence in this case. Defendant’s objection was, however, not properly framed for its elimination, and does not put the trial court in error. The .judgment will be reversed, and the causé ■ remanded for another trial. Reversed and remanded. Anderson, C. J., and McClellan and Sayre, JJ., concur.