Majority
p. 819Ruth M. Coviello, Respondent, v. Hoffman Beverage Company, Defendant, and Grand Union Company, Appellant. Supreme Court, Appellate Term, First Department, February 17, 1955.
John P. Smith and John Nielsen for appellant.
Harry Zeitlan and Herbert L. Fine for respondent.
Plaintiff, a customer in defendant Grand Union’s store, was injured as a result of the bursting of a bottle of ginger ale which she had taken from a shelf and was carrying around the store in a cart with other articles. The Trial Justice erroneously charged that, despite custody and control in plaintiff, res ipsa loquitur applied. In addition, the jury was not given a clear definition of the proof required to hold defendant as a vendor of articles liable for negligence. A new trial, wherein plaintiff will be required to go forward with evidence of some negligent act or omission on defendant’s part, should be had.
p. 820
The judgment should be reversed and new trial ordered, with costs to appellant to abide the event.
Hoestadter, Eder and Brady, JJ., concur.
Judgment reversed, etc.