This case was submitted to the jury on the question solely of the defendant’s negligence, the plaintiff having declined to amend his declaration by adding a count in contract. The only question raised is whether the evidence warranted a finding for the plaintiff upon that issue. Whether the plaintiff might have relied upon an implied warranty by the defendant that its food was pure and wholesome (see Farrell v. Manhattan Market Co. 198 Mass. 271, 274, and Roberts v. Anheuser Busch Brewing Association, 211 Mass. 449, 451), is not now to be considered.
*179After a careful examination of the record, we find no affirmative evidence of such negligence. The testimony put in by the plaintiff went no further than to show that he bought and ate the defendant’s food and became sick, from what the jury might find to have been ptomaine poisoning due to the food which he had eaten. The defendant’s testimony indicated that all its food supplies had been purchased from well known and reputable dealers; that its poultry was procured from a firm of wholesale dealers in poultry, under a contract which called for “fresh killed poultry, large plump birds,” and that there could be no better poultry than that which it received from them. There was testimony to be sure that the larger part of this poultry came from Indiana and Illinois, and had been killed there; but there was nothing to show that this fact was or should have been known to the defendant, or that any part of the poultry came from cold storage. The ham used by the defendant was bought from a large dealer in meats ready cooked, one ham each day, according to its evidence; its coffee was of a good grade and made on the premises. There was evidence also of strict inspection by the defendant of the food supplies that it received from the dealers, and of great care and cleanliness in the preparation of the food sold by it; that whatever was left unsold at the end of each day was not afterward served to customers, but was thrown away, and that the •defendant’s premises were carefully kept clean and sweet. Of course all or any part of this evidence might have been disbelieved; but a failure to accept the defendant’s evidence of its care and diligence and of the precautions that it had used could not take the place of evidence of negligence on its part.
In Bishop v. Weber, 139 Mass. 411, which was decided upon demurrer, the defendant’s liability was rested upon the averments of his negligence. That it is necessary in an action like this to aver and prove negligence in the defendant was expressly decided in Sheffer v. Willoughby, 163 Ill. 518. The decision in Roberts v. Anheuser Busch Brewing Association, 211 Mass. 449, turned upon the falsity of representations made by the defendant.
The defendant asks us to order judgment in its favor, under the provisions of St. 1909, c. 236; but the terms of the report require that a new trial should be had.
So ordered.