Plaintiff testified: “I was talking witH Mr.- Lanier while I was drinking. I swallowed something and spit, but don’t know what it was. It- scratched like a piece of trash. As soon as that hit my throat I spit the balance on the floor. I knew I swallowed something, but I did not feel anything else in my mouth. I did not feel the fly in my mouth. I would not swear that it was ever in my mouth.”
There was uncontradicted evidence that at the place on the floor where plaintiff spit a fly was immediately found. However, it is, apparent that plaintiff’s own narrative fails to disclose the actual presence of a fly in the beverage.
Plaintiff offered the testimony of a witness who stated that he discovered something in a bottle once or twice “while working in a filling station that sold beverage bottled by the defendant.” "Witness further testified: “I know almost that it was in 1926 that I found the substance in the bottle, but I do not know entirely, and I would not swear to it. . . . I would not swear that it was 1926 or 1927 when I found that substance in the bottle.” . . .
This evidence was too vague and indefinite to establish negligent default.
The law imposed upon the plaintiff the burden of offering evidence tending to show the presence of foreign and deleterious substance in the beverage. The principle was thus stated in Perry v. Bottling Co., 196 175, 145 S. E., 14. “It is settled law in this jurisdiction that the principle of res ipsa loquitur does not apply to personal injury occasioned by bursting bottles or from eating food alleged to be unwholesome, or for partaking of a bottled beverage when there is no evidence tending to show negligence in the preparation of the food or beverage and.no deleterious or harmful substance is found therein.” Lamb v. Boyles, 192 N. C., 542, 135 S. E., 464.
We are of the opinion that the motion for nonsuit should have been allowed.
Eeversed.