
    Priscilla Bynum vs. Francis J. Turbitt, d/b/a Turbitt & Co.
    No. 89963.
    July 11, 1933.
    For plaintiff: Joseph G. Le Count.
    For defendant: Roger L. McCarthy.
   CAPOTOSTO, J.

Action for negligence. Verdict for defendant. Plaintiff moves for a new trial upon the usual grounds.

The plaintiff complains of having been made seriously ill as a result of drinking about one-third of a bottle of ginger ale in which a hair pin was found. The bottle was opened when given to the plaintiff. Food in some form was served at the whist party which the plaintiff attended. The plaintiff denies eating anything. Her principal witness, however, first stated that she ate a sandwich, then said it was a “frankfort”. The defendant, who employs no women, detailed his method of bottling and the precautions taken against foreign substances.

The suddenness and intensity of the plaintiff’s ailment as described by her were of a fulminating character. No sooner was the small amount of ginger ale, not the hairpin, swallowed by her than dire and disastrous consequences followed. The Court cannot get away from the idea that in all probability a serious misunderstanding took place between the solids and the liquids which she had taken. -Perhaps the sandwich or frankfurt, commonly termed “a dog” may have resulted to her discomfort.

Fundamentally, this is a case of probable cause. Even admitting, though it is not affirmatively proven, that the defendant was in fact negligent, yet the plaintiff failed to prove by a preponderance of the credible evidence that this negligence was the proximate cause of the plaintiff’s upset. The jury’s verdict is amply supported by the evidence and has the approval of this Court.

Motion for new trial denied.  