dissenting.
I agree with the majority that there was no evidence which would support finding Betty Pardue guilty of contributory negligence. Therefore, it was error to give instructions on contributory negligence. Gergely v. Moore, (1954) 125 Ind.App. 263, 120 N.E.2d 637 reh. den. 122 N.E.2d 142. Furthermore, such error is presumed prejudicial and therefore reversible unless it appears from the record that such error was harmless. Id. I also agree if there were no evidence which would support a finding of negligence on the part of Seven-Up that such error would not be reversible, because in such event, there would be no basis for any recovery, and Pardue could not have been prejudiced by the giving of the contributory negligence instructions. However, I cannot agree with the statement of the majority that “[tjhere is simply no evidence or inference from which a jury could have inferred substandard conduct on the part of Seven-Up which proximately caused Betty’s injury.” Likewise, the majority’s finding as a matter of law that there was no evidence of negligence on the part of Seven-Up is, in my opinion, incorrect.
While negligence of Seven-Up may not be inferred merely from the fact that a bottle fell through the carton, broke, and exploded, cutting Betty Pardue’s Achilles tendon, the jury could infer the existence of a hole or tear in the bottom of the carton from such occurrence. This inference, coupled with the testimony of Crouch, Seven-Up’s route man, that he only looked for tears on the sides of the cartons, and merely conducted a “shake” test for tears in the bottom of the cartons, and that he never lifted a carton to visually inspect the bottom for holes or tears because it took too much *1160time, constitutes sufficient evidence for the consideration of the jury of whether or not Seven-Up exercised reasonable care in checking for defects in such cartons which could foreseeably result in injuries to purchasers. There being sufficient evidence to go to the jury on the question of negligence on the part of Seven-Up, it was clearly prejudicial error to instruct the jury on contributory negligence in the absence of any evidence supporting the invoking of that doctrine.
For the reasons heretofore stated, I would reverse the judgment as to the negligence count. Consequently, I dissent.