On appeal from the Monmouth County Court of Common Pleas.
For the appellant, Coult, Satz & Tomlinson (Gerard Foley, of counsel).
For the respondents, Ezra W. Karkus.
Before Brogan, Chief Justice, and Justices Trenchard and Parker.
The opinion of the court was delivered by
TRENCHARD, J. This is an appeal by the defendant below from a judgment based upon a verdict by a jury in favor of the plaintiffs below.
This suit is based upon substantial injuries sustained by the plaintiff Jessie McKittrick in eating a muffin bought by her from the defendant, the muffin containing a sharp piece or chip of glass. Her husband joined as plaintiff, claiming consequential damages.
The defendant-appellant's sole ground of appeal is that the trial court erred in denying its motions for a nonsuit and direction of a verdict. Such motions were based solely upon the contention that because there was testimony that the plaintiff wife buttered the half-muffin she put into her mouth, it was incumbent upon her to show that there was no glass in the butter spread on the muffin, failing which, the plaintiff did not sustain the burden of proving that the defendant's negligence was the proximate cause of her injury.
But that contention ignores the full sweep and legitimate effect of the testimony. The evidence on the plaintiff's case shows the following to have occurred: In September, 1935, the plaintiff wife, Jessie McKittrick, bought a box of whole wheat muffins from a driver employed by the defendant, and paid for them. The box was marked "Dugan Brothers," and wrapped with paper across the top. The plaintiffs and their daughter were preparing to have lunch, to consist solely of tea and the muffins just purchased. The plaintiff wife placed the "Dugan" box, still containing the muffins, on the kitchen table. In preparing the lunch, the plaintiff wife placed on the table, in addition to the box of muffins, a sugar bowl and a cream pitcher, containing sugar and evaporated milk, respectively, to be served with the tea, and a little berry dish, made of chinaware containing a slice of butter. There was no glassware of any kind on the table; in fact the plaintiffs "did not own any." The plaintiff wife preceded her husband and daughter in beginning to partake of the luncheon. The butter that was in the berry dish was rolled butter. The plaintiff wife had just cut a slice from the roll of butter,
which was wrapped, and laid it in the dish. Then she broke the muffin in half, buttered it, "using very little butter," and started to eat it. She took a mouthful of the muffin and felt "something grinding and gritty," "something hard." She thought perhaps she could swallow it; that it probably was a rough raisin. As she swallowed it, it "kind of felt rough" and "pricked" her throat. She took a second mouthful, and then stopped chewing, immediately put her hand to her mouth and spat out what she had taken in her mouth. She testified: "I pulled the piece of glass out of my mouth with the muffin wrapped around it." Her husband testified: "She picked a piece of glass out of what she had been chewing on, out of part of the muffin." Her daughter testified: "We just got seated and mother opened her muffin, buttered it a little bit, and she took a bite; then she must have swallowed that bite and she took a second bite, as she did she quickly drew out a piece of glass and muffin around it." The evidence shows that the piece of glass was "about between one-quarter of an inch and one-eighth of an inch long, and it was quite sharp on the edge and a little wider in the center. It came narrower on the edge and quite pointy."
Now it is clear, therefore, from a review of the plaintiff's evidence, that the hypothesis of the glass being imbedded in the muffin when the plaintiff wife bought it, is more probable than the hypothesis that the glass was contained in the slice of butter on the berry dish and was transferred to the half-muffin in smearing "a little bit of butter" on it.
While in such an action as this a plaintiff must prove circumstances which render it probable, and not merely possible, that the defendant was at fault, he is not required to exclude beyond doubt the inference that the damage was due to a cause for which the defendant was not responsible. All that is required is that the circumstances should be so strong that a jury might properly, on grounds of probability, rather than of certainty, exclude the inference favorable to the defendant. The test is probability rather than certainty. ...