This is an action by a consumer to recover of a bottler damages resulting from drinking bottled beverage containing noxious substance.
When the plaintiff had introduced his evidence and rested his case the defendant moved for judgment as in case of nonsuit and renewed his motion after all the evidence on both sides was in. C. S., 567. This motion was refused and defendant, appellant, preserved exception.
*717There was evidence tending to show that in January or February, 1938, the plaintiff purchased a bottle of Pepsi-Cola from the Purol Filling Station in Wingate, North Carolina, which had been bottled and placed on the market by the defendant to be sold to and consumed by the public; that upon drinking from one-fourth to one-half of the contents of the bottle the plaintiff was made desperately sick; and that upon an analysis of the contents of the bottle it was found to contain one grain of arsenic trioxide per fluid ounce of Pepsi-Cola, which was in excess of a lethal portion. There was further evidence tending to show that the bottle which contained the Pepsi-Cola purchased by the plaintiff was not uniform in shape in that the neck of the bottle was not directly over the center of the bottom thereof, and that the bottle was “crooked.”
There was no evidence that any other like products manufactured under substantially similar conditions and sold by the defendant at about the same time contained foreign or deleterious substances, and the plaintiff must rely solely upon evidence that related to the one “crooked” bottle containing arsenic trioxide. No other incident was mentioned in the evidence.
There was no evidence of defective machinery or failure to inspect; no evidence of negligence, unless the bare fact of the “crooked” bottle containing arsenic trioxide be construed as such evidence. To so construe the evidence requires the application of the doctrine of res ipsa-loquitur, which according to the decisions of this Court the plaintiff is not entitled to call to his aid. Enloe v. Bottling Co., 208 N. C., 305; Perry v. Bottling Co., 196 N. C., 175; Lamb v. Boyles, 192 N. C., 542; Cashwell v. Bottling Works, 174 N. C., 324.
We are constrained to hold that his Honor erred in overruling the demurrer to the evidence and that the judgment below should be