In considering the questions presently presented, it may be helpful to plot again the course of the decisions in this jurisdiction respecting the liability of one who manufactures or prepares in cans, sealed packages, or bottles, foods, medicines, drugs, or beverages and places them on the market, for injuries sustained by the ultimate consumer or user who purchases such goods from a dealer or middle-man and not from the manufacturer, bottler, or packer.
These propositions are established:
1. That the basis of liability is negligence rather than implied warranty. Thomason v. Ballard, ante, 1; Perry v. Bottling Co., 196 N. C., 175, 145 S. E., 14; Grant v. Bottling Co., 176 N. C., 256, 97 S. E., 27; Ward v. Sea Food Co., 171 N. C., 33, 87 S. E., 958.
2. That the standard of vigilance required of the manufacturer, bottler, or packer, is due care, i.e., commensurate care under the cireum-*308stances. Broadway v. Grimes, 204 N. C., 623, 169 S. E., 194; Corum v. Tobacco Co., 205 N. C., 213, 171 S. E., 78; Small v. Utilities Co., 200 N. C., 719, 158 S. E., 385.
3. Tbat tbe installation by tbe manufacturer, bottler, or packer, of modern machinery and appliances, such as is in general and approved use, does not ipso facto or perforce exculpate tbe defendant from liability. Grant v. Bottling Co., supra.
4. Tbat tbe unwholesomeness of tbe product which proximately results in injury to tbe consumer must be traced to tbe negligence of tbe manufacturer, bottler, or packer. Keith v. Tobacco Co., 207 N. C., 645.
5. Tbat in establishing tbe alleged negligence of tbe manufacturer, bottler, or packer, tbe plaintiff is not entitled to call to bis aid tbe doctrine of res ipsa loquitur. Lamb v. Boyles, 192 N. C., 542, 135 S. E., 464; Cashwell v. Bottling Works, 174 N. C., 324, 93 S. E., 901; Perry v. Bottling Co., supra; Dail v. Taylor, 151 N. C., 284, 66 S. E., 135; Note, 47 A. L. R., 148.
6. Tbat proof of tbe explosion from gas pressure of a single bottle of coca-cola (Dail v. Taylor, supra), pepsi-cola (Cashwell v. Bottling Works, supra), ginger ale (Lamb v. Boyles, supra), without more, is not sufficient to carry tbe case to tbe jury on tbe issue of negligence. Broadway v. Grimes, supra.
7. Tbat a way of escape is to be left open for tbe careful and prudent manufacturer, bottler, or packer. Thomason v. Ballard, supra; Lamb v. Boyles, supra; Grant v. Bottling Co., supra; Dail v. Taylor, supra.
8. Tbat direct proof of actionable negligence on tbe part of tbe defendant is not required. Such negligence may be inferred from relevant facts and circumstances. Broadway v. Grimes, supra; Dail v. Taylor, supra.
9. Tbat as tending to establish tbe principal fact in issue, to wit, tbe alleged actionable negligence of tbe defendant, it is competent for tbe plaintiff to show tbat like products manufactured under substantially similar conditions and sold by tbe defendant “at about tbe same time” contained foreign or deleterious substances. Perry v. Bottling Co., supra; Dail v. Taylor, supra; Ward v. Sea Food Co., supra; Davis v. Packing Co., 189 Ia., 775, 176 N. W., 382, 17 A. L. R., 649.
10. Tbat such similar instances are allowed to be shown as evidence of a probable like occurrence at tbe time of plaintiff’s injury, when accompanied by proof of substantially similar circumstances and reasonable proximity in time. Perry v. Bottling Co., supra; Broadway v. Grimes, supra; Grant v. Bottling Co., supra; Etheridge v. R. R., 206 N. C., 657, 175 S. E., 124; 22 C. J., 750, et seq.
Tested by tbe foregoing standards, or established rules, it would seem tbat insufficient predicate was laid for tbe introduction, at least, of *309some of the evidence tending to sbow other occurrences in which deleterious substances were found in the bottles of coca-cola placed on the market by the defendant. Broadway v. Grimes, supra. The testimony of Mrs. Henrietta Courtney related to a transaction too remote in point of time, there being nothing to show that it was one of a series of similar occurrences preceding or following the date of plaintiff’s injury or that the circumstances were substantially the same as in the instant case. Perry v. Bottling Co., supra. Likewise, the testimony of Bertha Lee and J. R. Moore related to substances, particles of glass, suggestive of a dissimilar, rather than a similar, source of deleteriousness from that of the substance of which the plaintiff complains; and it is not disclosed by the record that the testimony of L. D. Yerton was properly safeguarded, if, indeed, all these occurrences were not merely isolated instances, widely separated, and too remote in point of time. 22 C. J., 150. At least, the admission of this evidence was in excess of the liberality allowed, upon rulings, in Dry v. Bottling Co., 204 N. C., 222, 167 S. E., 801, and Broom v. Bottling Co., 200 N. C., 55, 156 S. E., 152.
The limitation on the admissibility of this kind of evidence was considered in the recent case of Etheridge v. R. R., 206 N. C., 657, 175 S. E., 124.
New trial.
ClaeKSON, J., dissents.