Opinion
January 20, 1964
In an action to recover damages for personal injuries, medical expenses and loss of services, the defendant King Kullen Grocery Company, Inc., by permission of the Appellate Term of the Supreme Court, appeals from so much of its order, dated June 22, 1962, as affirmed a judgment of the former Municipal Court of the City of New York, entered January 3, 1962 on a jury's verdict, insofar as such judgment was in favor of plaintiffs and against said defendant. Order, insofar as appealed from, affirmed, with costs. The proof in this record, as submitted by plaintiffs, showed that the female plaintiff was shopping in said defendant's supermarket; that as she stood before a display of bottles filled with a carbonated beverage, one of the bottles exploded and cut her face; and that she had not touched any of the bottles. No evidence was offered by defendants. In our opinion, this proof was sufficient to establish, prima facie, the negligence of said defendant and to shift to it the burden of going forward with evidence that it was not at fault, since it had exclusive control of the supermarket and the bottles ( Day v. Grand Union Co., 280 App. Div. 253, affd. 304 N.Y. 821). Beldock, P.J., Kleinfeld, Christ, Hill and Hopkins, JJ., concur.