STYERS
v.
WINSTON COCA-COLA BOTTLING CO.
No. 740.
Supreme Court of North Carolina.
February 24, 1954.*255 Deal, Hutchins & Minor, Womble, Carlyle, Martin & Sandridge, Winston-Salem, for plaintiff, appellee.
*256 Craige & Craige, Winston-Salem, and Roger B. Hendrix, Winston-Salem, for defendant, appellant.
PARKER, Justice.
The defendant's first assignment of error is to the denial of its motion for judgment of nonsuit. The plaintiff's action is based on allegations of negligence, and this assignment of error presents the question whether sufficient evidence of actionable negligence on the part of the defendant was offered to carry the case to the jury.
It is well settled law in North Carolina that proof of injury caused by the explosion of a bottle containing a carbonated beverage, standing alone, is not sufficient to carry the case to the jury on the ground of actionable negligence. The principle of res ipsa loquitur is not applicable. Davis v. Coca-Cola Bottling Co., 228 N.C. 32, 44 S.E.2d 337; Enloe v. Charlotte Coca-Cola Bottling Co., 208 N.C. 305, 180 S.E. 582; Cashwell v. Fayetteville Pepsi-Cola Bottling Works, 174 N.C. 324, 93 S.E. 901.
The installation by the bottler of modern machinery and appliances, such as is in general and approved use, does not ipso facto exculpate the defendant from liability. Enloe v. Charlotte Coca-Cola Bottling Co., supra; Grant v. Graham Chero-Cola Bottling Co., 176 N.C. 256, 97 S.E. 27, 4 A.L.R. 1090.
Direct evidence of actionable negligence on defendant's part is not requisite; such negligence may be inferred from relevant facts and circumstances. Enloe v. Charlotte Coca-Cola Bottling Co., supra; Broadway v. Grimes, 204 N.C. 623, 169 S.E. 194; Dail v. Taylor, 151 N.C. 284, 66 S.E. 135, 28 L.R.A.,N.S., 949.
In cases where damages are sought for injuries caused by such explosion, when the plaintiff has offered evidence tending to show that like products filled by the same bottler under substantially similar conditions, and sold by the bottler at about the same time have exploded, there is sufficient evidence to carry the case to the jury, as such facts and circumstances permit the inference that the bottler had not exercised that degree of care required of him under the circumstances. Such similar instances are allowed to be shown as evidence of a probable like occurrence at the time of plaintiff's injury when, and only when, accompanied by proof of substantially similar circumstances and reasonable proximity in time. Davis v. Coca-Cola Bottling Co., supra; Ashkenazi v. Nehi Bottling Co., 217 N.C. 552, 8 S.E.2d 818; Enloe v. Charlotte Coca-Cola Bottling Co., supra; Broadway v. Grimes, supra; Perry v. Kelford Coca-Cola Bottling Co., 196 N.C. 175, 145 S.E. 14; Grant v. Graham Chero-Cola Bottling Co., supra.
A study of the evidence and the stipulations shows that the plaintiff has offered sufficient evidence to require submission of his case to the jury under the law laid down in many decisions of this Court, and the defendant's motion for judgment of nonsuit was correctly denied.
The defendant assigns as error the refusal of the court to submit an issue of contributory negligence.
In Davis v. Coca-Cola Bottling Co., supra, the defendant's evidence tended to show that the bursting of the Coca-Cola bottles was due to some other or outside cause and not to defective bottles or overcharge. An examination of the Record in that case discloses that no issue of contributory negligence was submitted.
This assignment of error poses this question: Is there sufficient evidence in the Record tending to show that the plaintiff failed to exercise reasonable care for his own safety, and such failure concurring with actionable negligence of the defendant contributed to the injury complained of as a proximate cause, so as to require the submission of such an issue to the jury? Sir A. P. Herbert has wittily and happily said (Uncommon Law p. 1) "The Common Law of England has been laboriously built about a mythical figurethe figure of `The Reasonable Man.'" This Court has answered *257 this question No in Cashwell v. Fayetteville Pepsi-Cola Bottling Works, supra, in which case the plaintiff's evidence tended to show that while the plaintiff was placing some bottles of Pepsi-Cola taken from a crate on the shelves of his store, one of the bottles exploded, and so injured his eye that he lost the sight of it. The Court said [174 N.C. 324, 93 S.E. 904]: "There was no sufficient evidence, in law, to show any contributory negligence of the plaintiff. No obvious danger was presented to him in the presence of which he continued to handle the bottles, when a man of ordinary prudence and discretion would have refrained from doing so. He had the right to rely on the assurance that the defendant had performed its duty, and so inspected and filled the bottle as to prevent any such catastrophe as has resulted in the loss of his eye, or, as least, reduced the danger to such a minimum as could be attained by the exercise of proper care and caution."
The defendant assigns as error the charge of the court as to the credibility of witnesses. The language of the trial court is in substantially the same words as the charge in Herndon v. Southern R. Co., 162 N.C. 317, 78 S.E. 287, 288, in which the Court said: "This is but an admonition to the jury and not pointed to any particular witness or party. It applies with equal force to the defendant as to plaintiff and to all witnesses alike." See also Ferebee v. Norfolk Southern R. Co., 167 N.C. 290, 83 S.E. 360 and its comment on the Herndon case. The plaintiff was the only witness who had a direct pecuniary interest in the result, and if any one was prejudiced, which we do not admit, it would seem that it would be him. This assignment of error is not sustained.
The appellant has noted other exceptions to the court's instructions to the jury. We have carefully read the court's charge in its entirety with particular attention to the defendant's exceptions and its argument and authorities set forth in its brief, and are unable to perceive any prejudicial error therein which would justify the award of a new trial.
The trial court did not abuse its discretion in not setting aside the verdict as being against the greater weight of the evidence.
The jury's verdict and the judgment thereon will not be disturbed.
No error.
BOBBITT, J., took no part in the consideration or decision of this case.