Plaintiff, a chauffeur and gardener, lived in the household of his employer who was a customer of defendant. A bottle of cream delivered by defendant to *Page 4 plaintiff's employer was used by plaintiff and he was injured by swallowing broken glass. The evidence is that the pieces were about the size of a bean. They were not "ground glass." Evidence was introduced that there was no broken glass in the oatmeal, which plaintiff consumed with the cream, prior to its mixture with the cream, and that, after his injury, several other pieces of glass were found in the bottle. There is no claim that the bottle was chipped. When it was delivered at the home of plaintiff's employer, the top was covered by two caps secured by a ring. The broken glass was near the top of the bottle and the cream was very thick and partly frozen so that it did not freely run. For that reason plaintiff did not pour it in the usual way but removed it with a spoon. If the glass had entered the bottle at the dairy when the cream was unfrozen and liquid, would the broken pieces have remained so near the top? Were they in the bottle at the time of delivery to plaintiff's employer or were they accidentally introduced after plaintiff had removed the caps? These considerations do not appear specifically to have been brought to the jury's attention by the charge, but the court did instruct that plaintiff was not entitled to recover unless the glass was in the bottle when it was delivered.
The action is based on negligence. No other cause is alleged. Plaintiff produced testimony, the credibility of which was for the jury, that glass was in the bottle some time after he opened it. Defendant introduced evidence which on its face is impressive respecting the customary safety tests which it applied in inspecting bottles before filling and capping them. Although negligence was the sole cause of action alleged, the court charged that there was an implied warranty that the cream contained no deleterious substance harmful to the person whouses it. Under our recent decision in Gimenez v. GreatAtlantic Pacific Tea Co. (264 N.Y. 390) and other cases this instruction constitutes error. *Page 5 Neither was there any implied warranty as to merchantable quality except to the buyer. (Ryan v. Progressive Grocery Stores,Inc., 255 N.Y. 388.) The implied warranty in respect to food inures only to the benefit of the purchaser and no contract existed between defendant and this plaintiff. All the members of the Appellate Division recognized such to be the law but the majority were of the opinion that, assuming that the jury found that broken glass was in the bottle at the time of delivery, negligence as matter of law existed and that, therefore, the error in the charge did not affect the result.
Negligence as matter of law was inferred by the majority of the court on the theory that section 50 of the Agriculture and Markets Law (Cons. Laws, ch. 69) applies to the facts of this case. Section 50 provides: "No person shall sell or exchange or offer or expose for sale or exchange, any unclean, impure, unhealthy, adulterated or unwholesome milk or any cream from the same, or any unclean, impure, unhealthy, adulterated, colored, or unwholesome cream, or sell or exchange, or offer or expose for sale or exchange, any substance in imitation or semblance of cream, which is not cream, nor shall he sell or exchange, or offer or expose for sale or exchange any such substance as and for cream * * *." Section 199 of the same statute defines adulteration: "Food shall be deemed adulterated * * * 5. If it contain any added poisonous or other added deleteriousingredient which may render such article injurious to health * * *." Section 46 defines cream as a certain portion of described milk "to which no substance whatsoever has been added" except milk as limited by this section. These provisions when read together indicate that the legislative purpose was to prevent the sale of milk and cream which have been subjected to some process by which their texture had been or might be rendered spurious. Water would decrease its strength, dirt of any kind its purity and other ingredients which had mixed with and become a part of *Page 6 it would impair its natural quality. These provisions do not appear to be aimed at foreign substances such as stones or tacks or broken glass which do not become part of the substance which "masquerades as cream" but were intended to preserve the quality of the liquid and to establish its standard. It was not the cream which injuriously affected plaintiff, but it was the glass which constituted no ingredient or part of the cream. In Pine GrovePoultry Farm, Inc., v. Newtown By-Products Mfg. Co. (248 N.Y. 293) sections 128 and 130 of the Farms and Markets Law (Cons. Laws, ch. 69; now Agriculture and Markets Law) were under consideration. There, particles of steel wire had been ground so fine as to enter into and become a component of the food. Here, the pieces of glass were no element in the composition of the cream.
The question in this case, therefore, is one of common law negligence by a defendant, not in privity with plaintiff, severed from statutes relating to warranty and adulteration. That question is one of fact depending for its solution upon the quality and quantity of the proof which in turn must depend upon the degree of credibility accorded the witnesses by the jury. It should be considered uncomplicated by issues of law relating to warranty and adulteration. It is a close one and the burden of proof is of course on plaintiff. If this bottle was inspected and capped according to defendant's evidence, glass could not, in all probability, have entered the cream until after plaintiff removed the cap. The jury could accept the evidence of plaintiff's wife and another woman employed in the same household that glass remained in the bottle after some of the cream had been poured, but, in view of the tests applied by defendant in filling and bottling, the question still remains whether plaintiff has excluded the reasonable possibility that the glass in some manner might have fallen into the bottle after it had been opened. This is an essential element of plaintiff's case *Page 7 and the record is silent on the subject. Plaintiff was obliged to show by a preponderance of evidence that the glass was in the bottle through some negligence of defendant. When some other cause might have existed, plaintiff is bound to exclude it. (Hardie v. Boland Co., 205 N.Y. 336, 341.) When a fact is doubtful, and even in cases where the proof appears strong, but where the issue has been sent to the jury on an erroneous theory, we have not hesitated to reverse. (Sarconi v. 122 W. 26th St.Corp., 241 N.Y. 340; Currie v. International Magazine Co.,256 N.Y. 106; Owen v. Straight, 267 N.Y. 453.)
The judgment of the Appellate Division and that of the Trial Term should be reversed and a new trial granted, with costs to abide the event.