
    WINFREE v. COCA-COLA BOTTLING WORKS.
    103 S. W. (2d) 33.
    Middle Section.
    January 2, 1937.
    Petition for Certiorari denied by Supreme Court, March 27, 1937.
    
      Walter S. Faulkner, Frank McMillan, and Allison Humphreys, Jr., all of Lebanon, for plaintiff in error, Winfree.
    Trabue, Hume & Armistead, of-Nashville, and W. B. Williams and Louis Chambers, both of Lebanon, for defendant in error Coca Cola Bottling Works.
   CROWNOVER, J.

This is an action brought against 'the de-defendant Coca-Cola Bottling Works to recover for an injury to an eye, which the plaintiff, Winfree, alleges was caused by the negli-igenee of the defendant in overcharging a bottle of Coca-Cola with carbonic acid gas which resulted in an explosion.

The declaration contained two counts. The first charged that the carbonic acid gas forced into the bottle of Coca-Cola was explosive and the defendant company was negligent in overcharging the bottle with such gas, which caused said explosion. The second count averred that the defendant knew that carbonic acid gas was explosive and dangerous and that an overcharge of same would cause an explosion, but. in spite of that, it negligently overcharged said bottle, which caused it to explode.

The defendant pleaded not guilty.

The case was tried by the judge and a jury. At the close of the plaintiff’s evidence, and again at the conclusion of all the evidence, the defendant moved the court for peremptory instructions in its favor, which motions were overruled. The jury returned a verdict in favor of the defendant and judgment was entered dismissing the plaintiff’s action.

The plaintiff’s motion for a new trial having been overruled, he appealed in error to this court and has assigned errors, which are, in substance, as follows:

(1) There is no evidence to sustain the verdict.

(2) The trial judge erred in twice charging the jury on the contributory negligence of the plaintiff, which emphasized that fact.

(3) The trial judge erred in excluding testimony in regard to the finding of a brass ring in a bottle of Coca-Cola.

(4) The court erred in refusing to charge the plaintiff’s special request as to notice to the defendant company that the bottles were being too heavily charged.

(5) The verdict was the result of passion, prejudice, and caprice-on the part of the jury as clearly appears upon the face of the verdict when compared with the undisputed evidence in the case.

This case was before us last year and we reversed and remanded it for a new trial. Winfree v. Coca-Cola Bottling Works, 19 Tenn. App. 144, 83 S. W. (2d), 903. The ease was tried again in the lower court and is now again before us for determination.

Freeman Winfree, thirty-two years of age, was, in October, 1933, employed as a clerk and meat cutter in a retail grocery store in Lebanon, Tenn. Behind the counter from which he sold meat was a refrigerator in which was kept meat, bottled Coca-Cola, etc.

All the Coca-Cola sold in the grocery store was purchased from the defendant, the Coca-Cola Bottling Works, of Lebanon, Tenn.

On October 19, 1933, Winfree went into the refrigerator to get some bacon. It was behind two crates of Coca-Cola. One crate of bottles was full,, containing twenty-four bottles, and the other crate was about half full. In order to reach the bacon it was necessary for him to move the two crates, one of which was on top of the other. He caught the handhold of the bottom crate and gently moved the two crates eight or ten inches. The bottles did not strike each other in moving. While he was moving them a bottle of Coca-Cola in the top crate, the partly filled crate, exploded, and a piece of the glass of the bottle was thrown into his right eye, permanently injuring it.

The Coca-Cola had been in the refrigerator a day or two, and 'the temperature of the refrigerator was kept at 34 to 36 degrees.

Occasionally a customer would go into the refrigerator to look at meat or something, but he was generally accompanied by a clerk.

Other cases of Coca-Cola were placed outside of the refrigerater and by the side of it, behind the counter, and customers sometimes went behind the counter, but there was usually a clerk present.

1. The plaintiff contends that there is no evidence to support the verdict; that there is no other reasonable explanation of this explosion except that the bottle was overcharged and put on the market.

We think there is no doubt about the liability of a company that overcharges the contents of a bottle, and knowingly or recklessly puts it on the market, and injury results from an explosion. Winfree v. Coca-Cola Bottling Works, 19 Tenn. App., 144, 83 S. W. (2d), 903; Dail v. Taylor, 151 N. C., 284, 66 S. E., 135, 28 L. R. A. (N. S.), 949; Watson v. Augusta Brewing Co., 124 Ga., 121, 52 S. E., 152, 1 L. R. A. (N. S.), 1178, 110 Am. St. Rep., 157; O’Neill v. James, 138 Mich., 567, 101 N. W., 828, 68 L. R. A., 342, 110 Am. St. Rep., 321, 5 Ann. Cas. 177; Weiser v. Holzman, 33 Wash., 87, 73 P., 797, 799, 99 Am. St. Rep., 932; Colyar v. Little Rock Bottling Works, 114 Ark., 140, 169 S. W., 810.

We are also of the opinion that: “Evidence of the explosion to the injury of the purchaser of a bottle of carbonated beverage, accompanied by evidence that other bottles put up by the same bottler had exploded during the several preceding months, is sufficient to carry to the jury the question of the latter’s negligence, in an action to hold him liable for the injury.” Dail v. Taylor, supra. We held this in our former opinion in this case when it was first before us, that is, evidence of the defendant’s knowledge of other explosions was sufficient to carry the question of negligence to the jury. We did not hold that such evidence was conclusive, but, like any other material evidence, it should be considered by the jury hnd be weighed with other facts and circumstances by the jury in arriving at its verdict.

The jury returned a verdict for the defendant company. Now, was there any material evidence to support the verdict? We think there is, and that we are bound by the verdict.

The manager of the company at Nashville testified that the defendant company purchased its empty bottles from well-recognized and modern glass plants and that a Coca-Cola bottle will stand 600 pounds of pressure; that the pressure used in the Lebanon plant was 32 pounds, which was the amount generally used in bottling Coca-Cola; that soda fountain pressure runs from 90 to 120 pounds; that pressure in a Coca-Cola bottle becomes lower when the bottle is cool and rises when thé temperature increases. But he admitted they used Coca-Cola bottles from any source.

The local manager described how the Coca-Cola was bottled and inspected. He testified that he had been with the Lebanon plant since 1927 and said that the defendant had a modern bottling machine and that all bottles were inspected to discover any cracks or chips. He said that the pressure used in 1933, when this accident occurred, was 32 pounds, and it was the same pressure that the company had used all along and was using at the present time; that the pressure was regulated by a gauge which was inspected every day; that tbe gauge was set by band and at no time exceeded 32 pounds, and it could not be increased unless some one went to tbe gauge and turned it. Mr. Winns bad a pressure-gauge machine wbicb be brought to court with him and demonstrated before the jury tbe pressure that a Coca-Cola bottle would stand. He explained to tbe jury that experiments that be bad made at tbe plant in changing the temperature and increasing tbe pressure, none of wbicb resulted in an explosion. He said that tbe pressure machine in use by tbe company when this ease was tried was tbe same machine wbicb was in use in 1933, but there was a difference in tbe filling apparatus, but that did not have anything to do with tbe pressure.

Tbe employee who operated tbe pressure gauge at tbe defendant’s plant testified that be bad been working for tbe defendant company about seventeen years; that be was a bottler; that in October, 1933, and before that time, and ever since that time, tbe company bad been using only 32 pounds of pressure, and that be set tbe gauge every morning; and that at no time did tbe pressure exceed that amount. He said that tbe same pressure gauge was in use in 1933 as was in use at tbe time of tbe trial, and that it badn’t been changed; that all bottles were inspected before they were filled, and if any bottle bad a crack in it or a broken place it was thrown away. He further testified that be always worked close to tbe pressure gauge, and from time to time watched it during tbe day; that at no time did it exceed tbe pressure of 32 pounds; that tbe reason be had to set it from time to time was because tbe gas would sometimes get low; that be set it every morning when they started tbe plant and at night turned tbe gauge down and cut tbe gas off.

Hence tbe defendant’s evidence is to tbe effect that it was using only that amount of pressure adopted by up-to-date modern bottling plants; that 32 pounds pressure in a Coca-Cola bottle is not sufficient to cause it to explode; that tbe defendant had modern machinery and inspected all bottles from well-recognized manufacturers.

It was not admitted that tbe bottle in question came from tbe defendant’s plant; but it was proven that the store purchased all of its bqttled Coca-Cola from tbe defendant, and tbe jury could well have inferred that tbe bottle did come from tbe defendant’s plant.

There was evidence that at times customers passed down tbe passageway where tbe Coca-Cola was left in eases; but there is no evidence that any evil-minded person had planted that particular bot-tie in one of those cases.

It was incumbent upon tbe plaintiff to show by a preponderance of the evidence that tbe defendant was negligent. He introduced evidence in an effort to establish negligence, but tbe jury did not see fit to accept bis version of tbe case, but on the contrary found that be defendant was not guilty of negligence, and there is material evidence to support the verdict. We are bound by tbe jury’s verdict. Continental Ins. Co. v. Schulman, 140 Tenn., 481, 205 S. W., 315; Hines v. Partridge, 144 Tenn., 219, 231 S. W., 16; Washer, etc., v. Balton & Son, 4 Tenn. App., 67.

2. It is insisted that the court twice charged on the contributory negligence of the plaintiff, which emphasized that fact, when there was no evidence in the record to warrant a charge on contributory negligence. It is true that the court charged on contributory negligence in the first part of his charge, in explaining the defendant’s theory of the case, and said if the plaintiff was guilty of contributory negligence he could not recover, and then again, after he had finished his charge, on the request of the defendant he gave the following request in charge to the jury:

“If you find that the plaintiff negligently handled the case of coca-cola, and that such negligence in any way proximately contributed to the accident, then your verdict must be in favor of the defendant.”

This request, of itself, would be confusing and misleading to the jury, but we think that the court correctly stated the defendant’s theory on contributory negligence of the plaintiff and then explained away any uncertainty when he used the following language in his main charge about contributory negligence:

“If he didn’t know it, that it was dangerous and likely to explode and likely to injure him, as it is said it did injure him, in view of the fact that it is uncontroverted, I think, in the proof that it was expected by the manufacturers of coca-cola that it be handled in substantially the way that the plaintiff did handle it, his conduct in that respect would not constitute contributory negligence.”

We think the jury understood the charge on this subject.

3. The court correctly excluded the testimony about the brass ring being found in a bottle of Coca-Cola. The negligence averred in this case was the overcharging of the bottle with gas,, not failing to inspect the bottles before filling.

4. The court was not in error in refusing to charge the plaintiff’s special request as to notice to the company of the bottles being too heavily charged, as he had sufficiently charged on this subject in his main charge.

5. We are of the opinion that the verdict was not the result of passion, prejudice, or caprice on the part of the jury. It was just a question of whether the jury would believe the plaintiff’s contention or that of the defendant, and it saw proper to accept the defendant’s evidence, and we are bound by the verdict.

All the assignments of errors being overruled, it results that the judgment of the lower court is affirmed. The costs of the cause including the costs of the appeal are adjudged against the plaintiff, Freeman Winfree.

Faw, P. J., and DeWitt, J., concur.  