Smith Ex Rel. Smith v. Coca-Cola Bottling Co.

196 S.E. 822, 213 N.C. 544, 1938 N.C. LEXIS 137

• Court: Supreme Court of North Carolina
• Decided: May 4, 1938
• Status: Published

Opinion

Per Curiam.

At the close of the plaintiff’s evidence and at the close of all the evidence, the defendant in the court below made motions for judgment as in case of nonsuit. C. S., 567. The court below overruled these motions, and in this we can see no error.

In Hampton v. Bottling Co., 208 N. C., 331 (332), it is written: “The decisions of this Court are to the effect that one who prepares in bottles or packages foods, medicines, drugs, or beverages, and puts them on the market, is charged with the duty of exercising due care in the preparation of these commodities, and under certain circumstances may be liable in damages to the ultimate consumer. Corum v. Tobacco Co., 205 N. C., 213, and cases there cited. The decisions of this Court are also to the effect that while in establishing actionable negligence on the part of the manufacturer, bottler, or packer, the plaintiff is not entitled to call to his aid the doctrine of res ipsa loquitur, he is nevertheless not required to produce direct proof thereof, but may introduce evidence of other relevant facts from which actionable negligence on the part of the defendant may be inferred. Similar instances are allowed to be shown as evidence of a probable like occurrence at the time of the plaintiff’s injury, when accompanied by proof of substantially similar circumstances and reasonable proximity in time. Broadway v. Grimes, 204 N. C., 623; Enloe v. Bottling Co., 208 N. C., 305, and cases there cited.” Blackwell v. Bottling Co., 211 N. C., 729.

The evidence in the present action was sufficient to be submitted to the jury. There was “proof of substantially similar circumstances and reasonable proximity of time.”

In the judgment of the court below, we find

No error.

Sea well, J., took no part in the consideration or decision of this case.