Smith v. McClary

CRAIL, P. J.

This is an appeal from a judgment in favor of the defendants in an action for damages for alleged personal injuries. The contention of the plaintiff is that the trial court erred in refusing to give to the jury instructions on the doctrine of

res ipsa loquitur.

Plaintiff entered the place of business of the defendants and ordered a chocolate malted milk. The malted milk was thereupon mixed by the employees of the defendants in the regular manner. While in the act of consuming the malted milk plaintiff felt something in his throat. He choked and coughed up a substance that resembled a piece of cork three-quarters of an inch long by one-quarter of an inch wide. He coughed up no blood at the time, but he claims that he noticed

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a change in his voice and he could not speak above a whisper for months, and he asked damages for the injury.

In alleging negligence the plaintiff did not plead negligence generally, but he alleged specifically as follows: "That the said defendants, by and through their said servants and agents, and not regarding their duty in that behalf, carelessly and negligently caused and permitted the said Chocolate Malted Mills: to then and there contain a foreign, solid substance, resembling a piece of cork about three-quarters of an inch long and one-quarter inch wide, and that while plaintiff was thus drinking said Chocolate Malted Milk, and because of the said negligence and carelessness on the part of the defendants, the said solid substance stuck in plaintiff’s throat thereby causing plaintiff to then and there have a violent choking spasm, ...”

This is not a case where plaintiff has undertaken to recover upon a breach of an alleged warranty, either express or implied. The pleadings fail to embrace such an issue and the “food eases” recently decided by our courts on a breach of warranty, either express or implied, do not apply.

The

res ipsa loquitur

doctrine is based in part upon the theory that the defendant in the particular case involved has the best opportunity of ascertaining the cause of the accident, and that the plaintiff, having no such knowledge, is compelled to rely upon proof of the happening of the accident in order to establish negligence. (19 Cal. Jur. 713.) The inference of negligence created by the doctrine arises only in the absence of explanation of the cause of the accident.