(dissenting).
I find myself unable to agree with my associates. There was undisputed evidence that the carcass of a mouse formed a part of the contents of the bottle when opened by the retail vendor in the presence of and delivered to plaintiff’s messenger. The only reasonable theories to account for its presence in the bottle were (a) that it was there when delivery was made to the retail vendor, or (b) that while in the custody of the latter the bottle was tampered with, the cap removed, and the mouse voluntarily or involuntarily introduced, and the bottle re-capped. As between a natural *88and an unnatural assumption, in the absence of other proof, I think a'jury would be bound to find that when sold to plaintiff the bottle was in the same condition which existed when it was sealed and delivered by the defendant. This was the holding in Middlesboro Coca-Cola Bottling Works v. Campbell, 179 Va. 693, 20 S.E.2d 479, 481.
There the court also applied to bottled coca-cola the fule that:
“Foreign substances in food packages not tampered with are in thémselves evidence of negligence. When that is shown, a prima facie case has been, made out, which, if not overborne by evidence for the defendant, is sufficient to sustain a verdict for the plaintiff.”
And there the court also said:
“ * * * if the machinery worked properly no foreign matter would have remained in the bottle after it had been washed and sterilized; and even if, by the failure of the machinery to perform its function, foreign matter did remain, due care in the preliminary and final inspections would necessarily have disclosed its presence. We know, however, that machinery breaks down and employees at times fail to perform their assigned duties. This is manifested by the numerous cases of this character in which recovery has been sought.”
I think these statements correctly represent the legal presumptions applicable here. Unfortunately for the defendant it could not and so did not attempt to furnish evidence as to the passage of the particular bottle through its plant. It could only show the efficiency of its machinery and care in providing employees to operate and inspect. In both respects I think the evidence was adequate without photograph or view.. But the perfection of its machinery, granting all that was testified concerning it or would have appeared from photograph and view, merely emphasized the existence of negligence in its proper operation.
Whether photographs should be admitted, or a view of premises ordered, rests in the reasonable discretion of the trial judge. The case had resolved itself in my opinion to a simple issue: Whether negligence had occurred in the human processes of operation and inspection. I do not think that a representation of the machine by photograph, or a view accompanied by a demonstration of the customary manner of operation, would have materially aided the proper decision of the case, and I am unable to agree that the action of the trial court was an abuse of its discretion.