either permanently or temporarily, are at best, as far as the company is involved, bare licensees. City of Greenville v. Pitts, 102 Tex. 1, 107 S. W. 50, 14 L. R. A. (N. S.) 979, 132 Am. St. Rep. 843; State v. Chesapeake & Potomac Telephone Co., 123 Md. 120, 91 Atl. 149, 52 L. R. A. (N. S.) 1170; Cumberland Telegraph & Telephone Co. v. Martin's Adm'r, 116 Ky. 554, 76 S. W. 394, 77 S. W. 718, 63 L. R. A. 469, 105 Am. St. Rep. 229. As between Fortune and the plaintiff wife, she was entitled to the exercise of ordinary care for her safety. Hanson v. Spokane Valley Land & Water Co., 58 Wash. 6, 107 Pac. 863. But as between the parties to this suit she was no more than a mere licensee, and, no proof having been presented of wilful injury, the plaintiffs were not entitled to recovery. Jones on Telegraph and Telephone Companies (2 Ed.), § 218; Minneapolis General Elec. Co. v. Cronon, 166 Fed. 651, 92 C. C. A. 345, 20 L. R. A. (N. S.) 816. is enough to make out a case of negligence (apart from questions of pleading) for the plaintiff to prove that the accident must have been caused by one or more of several things. In case the jury were not satisfied that the plaintiff was right in her contention as to the specific negligence she undertook to prove she had a right to fall back upon the doctrine of res ipsa loquitur.” Cain V. Southern Massachusetts Tel. Co., 219 Mass. 504, 107 N. E. 380 (1914). As to the application of the doctrine of res ipsa loquitur, see also subdivision I, ante. IV. Sufficiency of evidence. In Knipping v. Chicago Tel. Co., 184 Ill. App. 48 (1913), the facts of the case are not stated. However, it was held in an action against a telephone company to recover damages for a shock sustained by plaintiff while answering a telephone call, that the evidence was sufficient to warrant a court in denying a motion to direct a verdict for the defendant. V. Question for jury. In an action by plaintiff to recover damages for an injury sustained while using a telephone by reason of an electric shock she testified that she reIceived an electric shock which went through her body when she was using the telephone, and described the way it affected her at the time and afterwards. Her testimony was contradicted, in a large measure, by expert testimony given by witnesses for the defendant. There was a verdict and judgment for the plaintiff for $1,500. On appeal it was contended that the plaintiff had not produced sufficient evidence to warrant the trial judge in submitting the case to the jury. Af firming the judgment the court held that the question of possibility of the happening of the event and the resultant injury to which she testified, was not in its nature, nor under the evidence, one which should be deter mined by the court, but was a question of fact to be determined by the jury. Morris v. Keystone Tel. Co., Super. Ct. 78 (1912). 52 Pa. W. F. A. GRANT v. GRAHAM CHERO-COLA BOTTLING CO. [Supreme Court of North Carolina, October 23, 1918.] 176 N. C. 256, 97 S. E. 27. 1. Sales-Duty of manufacturer of carbonated drinks as to safety of containerCare used by other manufacturers as measure. The duty of a manufacturer of carbonated drinks which are shown to have frequently exploded, causing injuries, is not measured by the care used by other manufacturers of such drinks, where it is shown that similar drinks bottled by them also have frequently exploded. 2. Sales-Duty of manufacturer of carbonated drinks to customer, in respect of strength of charge. The manufacturer of carbonated drinks owes to a customer the duty not to put into his hands a bottle charged with gas to an extent that it is dangerous to handle in the usual and customary method. 3. Sales Negligence of Manufacturer-Liability to ultimate consumer with whom no contractual relations exist. A manufacturer is liable for negligence in the manufacture of an article even to the final purchaser, though there are no contractual dealings between them. 4. Sales-Injury to customer by explosion of bottle containing carbonated drinkAction against manufacturer-Burden of proof as to omission of possible precautions. It is not incumbent upon plaintiff, in an action for personal injuries caused by the explosion of a bottle of carbonated drink manufactured by defendant, to show what precautions defendant should take to prevent such injuries. Action for damages for loss of an eye due to the explosion of a bottle of ginger ale manufactured by defendant. Appeal from a judg ment for defendant. Error. For appellant-Wm. P. Bynum, R. C. Strudwick, J. J. Henderson, and Thomas C. Carter. For appellee-Long & Long, and Parker & Long. CASE NOTE. Liability of vender or manufacturer for injury by explosion of bottle containing carbonated drink. I. Manufacturer, 870-875. A. Injury to original purchaser, 1. Opening refrigerator contain- B. Injury to remote buyer, 874- II. Subsequent vender, 875-877. Cross-references. Liability of manufacturer or independent contractor for injury to third person caused by instrumentalities dangerous only because of defective construction, see 12 N. C. C. A. 562-589, and references therein given; liability for injuries due to presence of disgusting or filthy substances in food, tobacco, etc., see 11 N. C. C. A. 359-365, and references therein given; liability to employee for injury from bursting or exploding The following are the pleadings in the action: Complaint. The plaintiff complaining of the defendant alleges: 1. That the defendant is and was at all times herein mentioned a corporation duly organized and existing under and by virtue of the laws of this state. 2. That it is and was at all times herein mentioned engaged in business in Graham, North Carolina, bottling and selling carbonated beverages, one known as chero-cola, and also one known as ginger ale, in glass bottles highly charged with gas. 3. That the plaintiff is and was at all said times a merchant doing business in Mebane, North Carolina, and in October, 1916, he purchased of defendant a number of bottles of said ginger ale and placed the same in his refrigerator in his store, and shortly thereafter having occasion to use some of the same he went to the refrigerator to get them; that upon lifting the top of the refrigera tor one of the said bottles burst and went into pieces, and one of the pieces of bottle struck or entered plaintiff's left eye, destroying the same. 4. That other bottles of chero-cola and of ginger ale bottled and charged by the defendant had theretofore burst and injured other persons under similar circumstances, as defendant well knew. 5. That plaintiff's said injury was the proximate result of negligence of the defendant in so bottling the said beverage that the bottles containing it were dangerous to be near or to handle; that the said defendant was negligent and failed in its duty to the plaintiff by selling to plaintiff bottles containing said beverage which on account of excessive pressure of gas or by reason of some defect in the bottle was dangerous as aforesaid, and likely to explode and to cause injury to any person handling them or being near them; that said dangerous defect was latent, it was not known to the plaintiff, and was known or by the exercise of reasonable prudence and care on its part should have been known to the defendant. 6. That by reason of the injury to the plaintiff caused as aforesaid by the negligence of the defendant, plaintiff has suffered great physical pain and mental anguish and has been permanently injured by the entire loss of his left eye and the injury to and weakening of and threatened loss of his other eye, all to his damage in the sum of ten thousand dollars. Wherefore, the plaintiff demands judgment in the sum of ten thousand dollars, for the costs of this action to be taxed by the clerk, and for such other and further relief as the court may deem him entitled to. Answer. The defendant, answering the complaint against it in the above entitled cause, says: 1. That article 1 and allegations therein contained are true, and therefore admitted. bottle, or water gauge, see 7 N. C. C. A. 344-350, and references therein given. I. Manufacturer. A. Injury to original purchaser. 1. Opening refrigerator containing iced bottles. The plaintiff was the owner of a restaurant selling among other things coca-cola, which was manufactured, It ap bottled and sold by the defendant. It about 2. That as to article 2, and the allegations therein contained, it is admitted that the defendant was at the times referred to in the complaint, engaged in bottling and selling carbonated beverages known as chero-cola and ginger ale. It placed said beverages in glass bottles, charged with gas to that extent that was proper for the proper marketing of said beverages. All allegations of said article not admitted, are denied. 3. That as to article 3, and the allegations therein contained this defendant admits that the plaintiff was at the time referred to in the complaint, a merchant conducting his business in the town of Mebane, and at about the time mentioned he purchased from the defendant a part of a crate of ginger ale in bottles, which had been bottled at the plant conducted by the defendant in the town of Graham. That as to what he subsequently did with said ginger ale, or about what subsequently occurred, this defendant has not information sufficient to form a belief, and therefore denies all other allegations of said article of the complaint not herein before admitted. 4. That article 4, the allegations therein contained are not true and the same are denied. 5. As to article 5 of the complaint, and the allegations therein contained, the defendant avers: The defendant in the month of - 19, built and established in the town of Graham, a bottling plant, for the purpose of bottling and selling carbonated drinks, such as chero-cola and ginger ale. That it installed in said bottling plant up-to-date approved machinery, such as was used in the very best plants, for carbonating and bottling the beverages to be sold by it. That in bottling said beverages, it used two gauges-one being a check upon the other-to ascertain the exact pressure used. That it bought bottles of the most approved kind, from reliable dealers. That it employed experienced and skilful workmen. That in bottling said beverages, and at the very time of bottling, that a pressure was exerted greater than it was at any subsequent time, and that bottles which stood the test of this excess pressure would not thereafter break or explode from the internal pressure. That in all respects as to equipping its plant, using high class standard materials and bottles, and employing skilful and experienced workmen, the defendant used great care and prudence in preparing its goods for sale. All the allegations of said article not admitted or denied, are denied. 6. That as to article 6 of the complaint, this defendant admits that plaintiff has lost his left eye and he has suffered therefrom. All other allegations of said article, and particularly all allegations that any injury to plaintiff was caused by the negligence of the defendant, are denied. For a further defense, the defendant alleges: First: that the plaintiff contributed to and brought about any and all injuries sustained by him, in that when he purchased and received from the defendant the ginger ale referred to herein, that he purchased the same from a wagon, or truck, in which it had been hauled from Graham to Mebane, a distance of about eight miles. That he knew that it was warm and that it had quently broke, because of their thinness of structure, in being filled, and also in being transported to the place of sale; and further evidence that the pressure of the gas in the bottle was about 60 pounds. It also appeared that the defendant designated no one to test the bottles, but the plaintiff did not show the particular bottle which exploded so that its strength and structure could be determined. The trial court directed a verdict for the defendant from which the plaintiff appealed. The court affirmed the judg ment entered upon the verdict, holding that the doctrine of res ipsa loquitur did not apply, the occurrence being an unforeseen accident for which there was no liability, and that no cause for the explosion was sufficiently proven in the instant case to place liability upon the defendant from the mere proof that certain other bottles were defective. As the court pointed out, the raising of the lid of the ice box might have caused a slight jar which resulted in the readjustment of the bottles and the explosion of one been thoroughly shaken up by said hauling, and he took the same and immediately placed it in a box with ice, subjecting said beverage and the bottle in which it was confined, to a sudden and violent change of temperature, and thereby weakened the bottle in which said beverage was confined, and if he was injured in the way alleged, this action on his part brought about and caused the condition that produced any explosion and consequent injury sus tained by him. Second: That the plaintiff contributed to and brought about any and all injuries sustained by him, in that the plaintiff, when he had purchased from the defendant the ginger ale referred to, immediately placed certain bottles of said ginger ale together with other bottled beverages in an ice box, where it was subjected to a much cooler temperature, and that when he opened said ice box, that he caused said bottles in said ice box to fall against one another and against the ice therein, and caused and brought about any explosion of any bottle which produced any and all injuries sustained by him. And now, having fully answered complaint of the plaintiff, this defendant prays that it may be hence dismissed without delay and recover its costs, to be taxed by the clerk. This was an action for damages sustained from an injury causing the loss of an eye. The plaintiff alleged that the defendant sold him bottles containing ginger ale, "which on account of the excessive pressure of gas, or by reason of some defect in the bottle, were dangerous as aforesaid, and likely to explode and to cause injury to any person handling them or being near them." The defendant's answer denied all negligence and averred that, in bottling the beverage sold to the plaintiff, it had used high-class standard materials and bottles; that it had a standard up-to-date plant, equipped with modern machinery; and that it used tests and checks to the end that excessive pressure should not be used. It pleaded contributory negligence on the part of plaintiff, in that plaintiff negligently submitted the bottled beverage to sudden and violent changes of temperature, which caused and was likely to cause the explosion of any bottle containing the carbonated beverage. The evidence was that the plaintiff was a merchant, and having purchased a number of bottles of ginger ale from the defendant at its factory in Graham, N. C., had placed the same in the of them; or the inrush of the warm air of a June night into the ice box might have caused a rapid expansion of the outer surface of the bottle, while the inner part remained at a lower temperature. Wheeler v. Laurel Bottling Works, 111 Miss. 443, L. R. A. 1916 E 1074, 71 So. (1916). 2. Placing stock on shelves. The plaintiff, a storekeeper, had purchased from the defendant some of its bottles filled with pepsi-cola and was placing them upon the shelves of his |