Tyrrell v. Lay

195 Misc. 403, 91 N.Y.S.2d 680, 1949 N.Y. Misc. LEXIS 2692

• Court: City of New York Municipal Court
• Decided: June 28, 1949
• Status: Published

Opinion

Kane, J.

This case was tried by the court without a jury; findings of facts and conclusions of law were waived. Plaintiff Mary Tyrrell sues defendant Lay for breach of warranty on the sale of a loaf of Fischer’s bread and the defendant Fischer Baking Company for negligence in the manufacture of the bread. Plaintiff’s testimony showed that a piece of wire was imbedded in a piece of the Fischer bread which was wrapped and sealed in wax paper and already sliced. She testified she bit into the bread and the wire cut and injured the roof of her mouth requiring medical attention. Plaintiff Frank H. Tyrrell sues both defendants for medical expenses and the loss of services of his wife.

I find both plaintiffs have sustained the burden of proof on their causes of action. The plaintiff wife is entitled to recover against defendant Lay on breach of warranty and against defendant Fischer Baking Company for negligence in the manufacture of the bread. I find a strong inference of negligence from the fact that the bread was wrapped and sealed by Fischer in wax paper before it left defendant Fischer’s plant and that the wire was embedded in the body of the bread, rather than the crust. The defendant’s proof as to the precautions taken to prevent foreign substances from entering the bread in manufacture failed to rebut the inference of negligence; as a matter of fact, such proof showed that in any number of the stages in the manufacture of the bread, foreign substances could find their way into the bread, the precautions so testified to fell far short in the court’s opinion in meeting this condition. Judgment for the plaintiff Mary Tyrrell against both defendants in the sum of $400. Judgment for plaintiff Frank H. Tyrrell in the sum of $100. Ten days ’ stay. Thirty days to make a case.