This is a civil action by an ultimate consumer to recover of a bottler damages resulting from tbe explosion of a bottle of Royal Crown Cola. At tbe conclusion of tbe plaintiff’s evidence tbe court sustained defendant’s motion for judgment as in case of nonsuit, C. S., 561, and from judgment accordingly, tbe plaintiff appealed, assigning error.
There was sufficient evidence to establish that while tbe plaintiff was carrying a bottle of Royal Crown Cola, which bad been bottled and sold by tbe defendant to a merchant, who in turn bad sold it to her sister, tbe bottle exploded and injured tbe plaintiff.
Tbe sole question presented by tbe exceptions and briefs filed is whether there was sufficient evidence of other instances of bottles bottled by tbe defendant exploding under “substantially similar - circumstances and reasonable proximity in time” to bring tbe case within tbe principles enunciated in Dail v. Taylor, 151 N. C., 285; Cashwell v. Bottling Works, 174 N. C., 324; Perry v. Bottling Co., 196 N. C., 175; Enloe v. Bottling Co., 208 N. C., 305.
The allegation is, and the evidence tends to prove, that the bottle exploded in tbe bands of tbe plaintiff on 21 September, 1939, and cut and injured her face.
Tbe witness Camp testified in effect that in tbe month of April, 1939, be was gathering up Coca-Cola bottles from an ice box, in Cherryville, Gaston County, and that under tbe Coca-Cola bottles there was a crate of Royal Crown Cola, and as be reached down to pick up a Coca-Cola bottle a Royal Crown Cola bottle exploded and cut bis finger.
Tbe witness Sharpe testified in effect that one day in August, 1939, while tbe salesman of tbe defendant was placing Royal Crown Cola in bis ice box in Charlotte, two of tbe bottles exploded, and scattered glass.
Tbe testimony of A. B. Fitzgerald, taken on adverse examination by tbe plaintiff, was introduced in evidence and was to tbe effect that be was president and general manager of tbe defendant corporation, and bad been since its formation in 1925, and he knew- that if bottles were hot and were put in cold water with syrup in them they would explode— too drastic a change of temperature would make them explode on the machine. “They have exploded on tbe machine ever since I have been bottling.” “The general conditions under which we manufacture, bottle and distribute the beverage known as Royal Crown Cola in Mecklenburg *554County bave not changed any in the last four years, and we are using the same methods of preparation and bottling that we used in the last foúr years.”
We are of the opinion, and so hold, that this evidence when construed in the light most favorable to the plaintiff, as it must be upon demurrer thereto, is sufficient to carry the case to the jury, and that the court erred in granting the motion for and entering a judgment as in case of nonsuit.
Eeversed.