Daniels v. . Swift Co. , 209 N.C. 567 ( 1936 )

STACY, C. J., dissenting.

CONNOR, J., concurs in dissent. This is an action to recover damages for personal injury alleged to have been caused by the negligence of the defendant in allowing minute particles of glass to get into sausage sold by it for public food consumption.

From a judgment based upon the verdict the defendant appealed and assigned as error the action of the court in refusing to grant its motion for judgment as of nonsuit made upon the plaintiff's resting his evidence and renewed at the close of all the evidence. C. S., 567.

There was evidence tending to show that on or about 15 June, 1935, the plaintiff purchased from L. A. Trueblood Company about one and one-half pounds of sausage which had been packed and sold for food consumption to Trueblood Company by the defendant Swift Company, and that after the sausage was eaten by the plaintiff it was found to have contained small particles of glass, some of which the plaintiff swallowed, resulting in his painful and serious damage. There was further evidence tending to show that within two or three weeks prior to this occasion the plaintiff had found "grit" in similar sausage purchased by him from the same source which had likewise been manufactured and sold for food consumption by the defendant. The evidence also tended to show that the sausage, when manufactured, was stuffed into "sheep casings," and that when purchased no grit was found on the outside thereof.

We think this evidence brings the case within the principle enunciated in Hampton v. Bottling Co., 208 N.C. 331, and Corum v. Tobacco Co.,205 N.C. 213, and cases there cited. In the Hampton case, supra, it was said: "The decisions of this Court are to the effect that one who prepares in bottles or packages foods, medicines, drucs, or beverages, and puts them on the market, is charged with the duty of exercising due care in the preparation of these commodities, and under certain circumstances may be liable in damages to the ultimate consumer. . . . The decisions of this Court are also to the effect that while in establishing actionable negligence on the part of the manufacturer, bottler, or packer, the plaintiff is not entitled to call to his aid the doctrine of res ipsaloquitur, he is nevertheless not required to produce direct proof thereof, but may introduce evidence of other relevant facts from which actionable negligence on the part of the defendant may be inferred. Similar instances are allowed to be shown as evidence of a probable like occurrence at the time of the plaintiff's injury, when accompanied by proof of substantially similar circumstances and reasonable proximity in time."

In the trial of the case in the Superior Court we find

No error.