Astor v. Safeway Stores, Inc.

YORK, P. J.

The complaint herein alleges that on the 14th day of January, 1936, appellant purchased a bottle of buttermilk for immediate consumption from the respondent Safeway Stores, Inc.; that he started to drink the same and felt in his mouth some particles which he believed to be ice; that after consuming a small amount of the buttermilk he became aware of a larger particle in his mouth which, upon examination, he discovered to be a piece of broken glass five-eighths of an inch in length and one-fourth of an inch in thickness, slightly circular in form, and at the same time he realized that he had been swallowing small particles of glass. He thereupon exhibited to the clerk from whom he had purchased the buttermilk both the bottle and the large piece of glass which he had taken from his mouth. It is further alleged that as result of the negligence of said respondent Safeway Stores, Inc., appellant was greatly injured and damaged in that his mouth and throat were cut and lacerated by said broken glass; that by reason of swallowing the same before he discovered what it was, he suffered continuous pains in his throat and mouth and in his stomach and intestines and became sick and nauseated thereby; “that

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lie still suffers such pains and reasonably expects that he will so suffer for at least one year and that at any time one or more of said pieces of glass swallowed by him may perforate the walls of his stomach and intestines and cause total disability or death, to his general damage in the sum of ten thousand dollars.” Special damages are then alleged: $600 because of his inability to work at his trade of painter and decorator; $200 for medical and surgical treatments.

The cause was heard by the court sitting without a jury, who found that the buttermilk was purchased, as alleged; that “in the buttermilk in said bottle there was a sharp piece of broken glass, which was not any part of the bottle, and that plaintiff got the same into his mouth in the course of drinking said buttermilk directly from said bottle, and cut his mouth thereby . . . that said buttermilk was not fit for human consumption, and that plaintiff relied upon the skill and judgment of defendant Safeway Stores, Inc., that the said bottle of iced buttermilk was fit for human consumption. . . . that other than the cut in the mouth caused by said broken glass plaintiff received no other injury nor any loss of weight; that plaintiff was treated by physicians and a reasonable value of such treatment did not exceed $50.00.”