#### LULA HAMPTON v. THOMASVILLE COCA-COLA BOTTLING COMPANY.

(Filed 26 June, 1935.)

1. Food A a—

Tlie manufacturer of food or drink is required to exercise due care in the preparation of these commodities, and may be held liable by the ultimate consumer for injury resulting from breach of this duty upon a proper showing.

3. Same — Res ipsa loquitur does not apply to finding of noxious substance in drinlc by consumer, but direct proof of negligence is not necessary.

In establishing- negligence on the part of a manufacturer in the preparation of a bottled drink, the ultimate consumer, injured by a foreign, deleterious substance in the bottle, may not rely upon the doctrine of *res ipsa, loquitur,*but direct proof of negligence is not necessary, since negligence may be established by other relevant facts and circumstances from which it may be inferred, and similar instances are competent as tending to show a probable like occurrence at the time of plaintiff’s injury, when accompanied by proof of substantially similar circumstances and reasonable proximity of time.

3. Same — Evidence of negligence on part of bottler held sufficient to overrate nonsuit in action by ultimate consumer.

Evidence that plaintiff was injured by drinking coca-cola from a bottle which had paint or varnish inside on its bottom and side, and that shortly after the injury in suit another had discovered a substance resembling-white paint on the inside of another bottle prepared by the defendant, *is held*sufficient to be submitted to the jury on the issue of defendant’s actionable negligence.

Appeal from *Alley, J.,*at September Term, 1934, of DavidsoN.

Affirmed.

This is an action by the ultimate consumer to recover of the bottler damages from drinking bottled beverage containing deleterious substance.

The issues submitted and the answers made thereto were as follows:

“1. "Was the plaintiff injured by the negligence of the defendant, as alleged in the complaint? Answer: 'Yes.’

“2. What damages, if any, is the plaintiff entitled to recover? Answer : ‘$200.00.’ ”

From judgment based upon the verdict the defendant appealed to the Supreme Court, assigning errors.

*D. L. Pichará, and P. V. Oritcher for plaintiff, appellee.*

*Don A. Walser for defendant, appellant.*

ScheNCK, J.

The exceptive assignments of error urged upon appeal assail the action of the court in refusing to grant the defendant’s motion *332of judgment as of nonsuit made upon tbe plaintiff’s resting ber evidence and renewed at tbe close of all tbe evidence. O. S., 561.

There was evidence tending to sbow that on 30 September, 1933, tbe plaintiff bought from Deaton's Store coca-cola which bad been bottled and sold for tbe retail trade by tbe defendant, tbe Thomas-ville Coca-Cola Bottling Company; that upon drinking a small portion thereof tbe plaintiff became nauseated and sick; and that upon examination it was found that tbe bottle containing tbe coca-cola bought and drank by tbe plaintiff bad in it a foreign substance that bad not mixed with tbe coca-cola, and that looked and smelled like paint or varnish, and that this substance was thick upon tbe bottom of tbe bottle, and on one side of tbe bottle inside there was a lump about tbe size of tbe end of tbe thumb.

Tbe decisions of this Court are to tbe effect that one who prepares in bottles or packages foods, medicines, drugs, or beverages, and puts them on tbe market, is charged with tbe duty of exercising due care in tbe preparation of these commodities, and under certain circumstances may be liable in damages to tbe ultimate consumer. *Corum v. Tobacco Co.,*205 N. C., 213, and cases there cited.

Tbe decisions of this Court are also to tbe effect that while in establishing actionable negligence on tbe part of tbe manufacturer, bottler, or packer, tbe plaintiff is not entitled to call to bis aid tbe doctrine of *res ipsa loquitur,*be is nevertheless not required to produce direct proof thereof, but may introduce evidence of other relevant facts from which actionable negligence on tbe part of tbe defendant may be inferred. Similar instances are allowed to be shown as evidence of a probable like occurrence at tbe time of tbe 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., ante,*305, and cases there cited.

One R. O. Liverman testified as follows: “I have never seen any coca-cola manufactured by tbe Thomasville Ooca-Oola Bottling Company shortly before or after this occasion with matches in it, but did see some looked like white paint splashed in tbe inside. It was white, white splotches. It was inside tbe bottle.” Tbe sole question involved in tbe instant case is whether this testimony of Liverman, when read in connection with tbe evidence tending to show other pertinent facts, was sufficient to carry tbe case to tbe jury on tbe issue of tbe defendant’s actionable negligence. Since in our opinion this testimony, when considered in connection with other testimony, furnishes more than a scintilla of evidence tending to establish tbe plaintiff’s contentions, and since all of tbe evidence must be interpreted most favorably for tbe plaintiff, we are constrained to bold that tbe case was properly submitted to tbe jury. *Gates v. Max,*125 N. C., 139; *Lamb v. Ferry,*169 N. C., 436; *Corum v. Tobacco Co., supra.*

Affirmed.