filled with highly charged water constituted prima facie evidence of negligence on the part of the manufacturer and bottler in an action for injuries resulting to the purchaser's bartender from such explosion, the court saying that it was for the jury to say whether or not the manufacturer was negligent in failing to make suitable tests of the strength of the bottle.

And in Dail v. Taylor (1909) 151 N. C. 284, 28 L.R.A. (N.S.) 949, 66 S. E. 135, it was held that while evidence of the explosion of a single bottle of Coca-Cola was not in itself sufficient to prevent a nonsuit in an action for damages by the purchaser of a bottle, injured by an explosion thereof, such fact, together with evidence that many other bottles put up by the defendant had exploded during the several preceding months, was sufficient to carry to the jury the question of the bottler's negligence. And the Dail Case was followed and approved in Cashwell v. Fayetteville Pepsi-Cola Bottling Works (1917) 174 N. C. 324, 93 S. E. 901, which involved injuries to a purchaser for resale, caused by the explosion of a bottle of Pepsi-Cola while being handled by him. This conclusion was again approved and adhered to in the reported case (GRANT v. GRAHAM CHERO-COLA BOTTLING CO. ante, 1090). It was further held in the latter case that a bottler of charged soft drinks for the trade cannot relieve itself from liability for injuries to a customer, caused by the bursting of a bottle of ginger ale, by proof that it used in its business appliances in approved and general use, with competent and sufficient workmen, that it used only the amount of gas pressure used by reasonably prudent and careful bottlers, and that the same was true as regards selection and inspection of the bottles used, since the practice of others engaged in a similar business is not necessarily the standard of care required, which, of course, is the case where it appears that such others put up bottles which often exploded, showing negligence on their part.

However, a somewhat different view was taken in the Washington case of

Weiser v. Holzman (1903) 33 Wash. 87, 99 Am. St. Rep. 932, 73 Pac. 797, where the court, proceeding upon the theory that bottled champagne cider was a dangerous explosive, held that an employee of a purchaser of a botthe could recover from the manufacturer for injuries caused by its explosion, and stated that the rule was that one who sells to another an article intrinsically dangerous, knowing it to be such, without notice to the purchaser, is responsible to any person who, without fault on his part, is injured thereby. It was also said that this rule does not rest upon any privity of contract or contractual relation between the person selling the article and the person injured, but upon the principle that the original act of selling such an article is wrongful, and that the wrongdoer is, therefore, responsible to anyone injured for the consequences of his wrongful act.

The question of the liability of a manufacturer or bottler for injuries resulting from the breaking or bursting of a container in which goods have been sold has also been answered where the contention was that there was no liability for the reason that there was no privity of contract between such manufacturer or bottler and the person injured. Upon this phase of the question the rule seems to be that to charge the seller of a commodity not ordinarily or intrinsically dangerous with liability for injuries to a person with whom no contractual relation exists, caused by the breaking or exploding of the container in which such commodity was sold, it must appear that such seller had knowledge of the dangerous condition of the container and its contents. This rule was stated in O'Neill v. James (1904) 138 Mich. 567, 68 L.R.A. 342, 110 Am. St. Rep. 321, 101 N. W. 828, 5 Ann. Cas. 177, 17 Am. Neg. Rep. 561, wherein it was held that a manufacturer and bottler of champagne cider, an article of commerce usually harmless in itself, was not liable for injuries to a purchaser's bartender, caused by the explosion of a bottle thereof, where it appeared that the cider was made by proper machinery, and it did not appear that it was overcharged, or that the defendant knew that for some reason, such as overcharging or defect, the bottle was peculiarly liable to such an accident. And in Colyar v. Little Rock Bottling Works (1914) 114 Ark. 140, 169 S. W. 810, it was held that a manufacturer and bottler of charged soft drinks cannot be relieved of any negligence in so overcharging a bottle that it burst, to the injury of an employee of the purchaser, on the ground of a lack of privity of contract, where the injury occurred while such employee was handling the bottle in the usual and necessary course of the purchaser's business, which handling was necessarily within the contemplation of the parties when the sale was made, and the defendant was charged with notice that the bottle was overcharged, and that such condition would probably cause it to explode. And in the reported case (GRANT v. GRAHAM

CHERO-COLA BOTTLING Co. ante, 1090) the court ruled that one negligently putting up a highly charged beverage in bottles was liable for injuries to a customer, caused by the bursting of a bottle, even though there were no contractual dealings between them. And the same rule has been applied where the article negligently marketed was regarded as intrinsically dangerous. See Weiser v. Holzman (Wash.) as set out supra.

Applying the rule that the omission to perform a statutory duty creates statutory negligence, it has been held that violation of the Federal Food and Drug Act by misbranding a bottle of hair tonic and introducing same into interstate commerce is evidence of negligence for the jury in an action for the death of the purchaser of the bottle, which resulted from an explosion thereof. Armour v. Wanamaker (1913) 120 С. С. А. 529, 202 Fed. 423. G. J. C.

Trial - directed verdict absence of evidence.

2. In an action for damages claimed to have been caused through the negligence of the defendant, it is not error for the trial court to direct a verdict for the defendant, where the plaintiff offers no evidence tending to prove either that the defendant was negligent in the particulars averred in the petition, or that the negligent acts com

Headnotes by the COURT.

plained of were the proximate cause of the injury.

[See 20 R. C. L. 166-168.] Adjoining owners - excavation liability.

3. Where the owner of a lot in a municipality excavates to a depth greater than 9 feet below the curb of the street on which his lot abuts, and such excavation causes damage to any wall, house, or other building upon the lot adjoining thereto, he is liable in a civil action to the parties injured to the full amount of such damage, regardless of whether he is or is not guilty of any negligence in making such excavation or in the construction and maintenance of any wall placed therein.

[See 1 R. C. L. 384-386.]

- protection from flood.

4. Where such excavation to a depth greater than 9 feet below the curb grade has not caused the damages complained of, the fact that the owner of the lot has caused such excavation to be made upon his premises does not

Statement by Donabue, J.:

On the 20th day of May, 1913, Sophia Ulland filed a petition in the common pleas court of Hamilton county, Ohio, against the FossSchneider Brewing Company, a corporation, averring in substance: That she was the owner of a certain lot or parcel of land on the west side of Freeman avenue, in the city of Cincinnati, Ohio, adjoining the property owned by the defendant corporation. That there had been erected upon the lot owned by the plaintiff a 21-story brick building, and that the foundation under this building extended downward to a depth of 9 feet, to which depth the cellar was excavated. That prior to the 31st day of March, 1913, the walls of the building, foundation, and cellar were solid and in safe condition to support said building; that the defendant company's property adjoined her lot immediately to the south, and many years prior to the 31st day of March, 1913, defendant had caused the ground to be excavated to a depth of 18 or 20 feet below the curb line of Freeman avenue, and for many years maintained a cellar to that depth in said excavation, and entirely along the line of plaintiff's property; and that the defendant had constructed a stone foundation or cellar wall along

the north line of its property immediately adjoining the property of the plaintiff, which cellar and foundation walls, through the negligence of the defendant, were permitted to break and crack in many places, in such manner as to allow the earth, sand, and gravel from plaintiff's lot to slip and slide through said walls into the defendant's cellar, thereby undermining the building upon plaintiff's lot, so that, by reason thereof, on or about the 31st day of March, 1913, the support under plaintiff's building was undermined and removed and the entire foundation wall and south wall gave way, destroying the plaintiff's premises. That on the 28th day of March, 1913, the city of Cincinnati, Ohio, was visited by a flood, the highwater level of which reached above the level of the cellar floor of the plaintiff's premises, and far above the cellar level and far above the excavation of the defendant's cellar. That on the 29th day of March, 1913, the defendant installed in its cellar immediately adjoining the plaintiff's premises large siphon or other force pumps and operated them for the purpose of preventing the water from filling its cellar; and that the defendant operated these pumps in such a careless, negligent manner, and with such force and power, as to cause the earth, sand, and gravel on plaintiff's lot to be thrown into the defendant's cellar through and under the walls maintained by it, thereby undermining the building upon plaintiff's lot, and removing the support of the foundation of plaintiff's building, causing the foundation walls and the walls of her building to collapse and fall into the excavation, to her damage in the sum and amount of $6,000. That on the 30th day of March, 1913, the tenants of the plaintiff notified the defendant that its acts were causing the earth, sand, and gravel to be forced into its cellar, endangering the plaintiff's premises, and requested it to cease operating the pumps; but that defendant paid no attention to said notice and warning, and did not discontinue the operation of its pumps.

To this petition the defendant filed an answer, in which it admitted plaintiff was the owner of the premises described in the petition, with the improvements thereon situated, and that it was the owner and in possession of the real estate adjoining and immediately south thereof; that it caused these premises to be excavated to a depth of 18 to 20 feet below the curb line on Freeman avenue, and has for many years maintained a cellar in this excavation the entire depth of plaintiff's lot; and that a number of years ago it constructed a stone wall along its north line, immediately adjoining the plaintiff's property. And it denied each and every other allegation contained in the petition.

Upon the trial of the cause to a jury, and at the close of the evidence introduced by the plaintiff, counsel for the defendant moved the court to instruct the jury to return a verdict for the defendant; which motion was sustained. Exceptions were noted, motion for new trial filed and overruled, and judgment entered upon the verdict, dismissing the plaintiff's petition at her cost. To this judgment, error was prosecuted in the court of appeals of Hamilton county, which court reversed the

judgment of the common pleas court and remanded the cause for a new trial. This proceeding in error is brought in this court to reverse the judgment of the court of appeals. Messrs. Bettinger, Schmitt, & Kreis, for plaintiff in error:

The flood of 1913 was an act of God.

Urbana Egg Case Co. v. Nypano R. Co. 16 Ohio N. P. N. S. 321; Erie R. Co. v. Kohler, 26 Ohio C. C. N. S. 337.

The doctrine of lateral support does not extend to flood waters, or to any waters that are not naturally in the soil.

Nichols v. Marsland, L. R. 10 Exch. 255; 1 Thomp. Neg. p. 86; Central Trust Co. v. Wabash, St. L. & P. R. Co. 57 Fed. 441; Daniels v. Ballantine, 23 Ohio St. 532, 13 Am. Rep. 264.

Messrs Powell & Smiley for defendant in error.

Donahue, J., delivered the opinion of the court:

Counsel, both in their briefs and oral arguments, have not confined themselves to the issues joined in the pleadings. While there is an averment in the plaintiff's petition that the defendant caused its premises immediately adjoining those of the plaintiffs to be excavated to a depth of 18 or 20 feet below the curb grade of Freeman avenue, and for many years has maintained a cellar in this excavation the entire depth of plaintiff's lot, and that the defendant operated pumps for the purpose of preventing the water from filling its cellar, yet there is no averment either that the excavation to a depth greater than 9 feet below the curb grade, or the refusal on the part of the defendant to permit its cellar to fill with water, caused the damages to plaintiff's property. On the contrary, she specifically avers in her petition that the damage was caused to her property by reason of the negligence of the defendant in two particulars:

First. That the defendant negligently permitted its adjoining wall to break and crack in many places; that the gravel and earth from plaintiff's lot was thereby caused to slip and slide through these cracks and breaks, to such an extent as to undermine the foundation of her building.

Second. That on the day preceding the injury to plaintiff's property, the defendant installed in its cellar, immediately adjoining plaintiff's premises on the south, large siphon or other force pumps, and operated these pumps in such a careless, negligent manner, and with such force and power, as to cause the earth, sand, and gravel on plaintiff's lot to be thrown into the cellar of the defendant through and under the walls maintained by it, thereby undermining the building on plaintiff's lot and removing the support of its foundation.

The defendant in its answer denies these averments of negligence. It clearly appears from the evidence offered on behalf of the plaintiff that the waters that washed the sand, earth, and gravel from under the foundation of her building were part of the waters of a general flood in this and adjoining states in the latter part of March, 1913. This flood was so unprecedented in its extent and character, so disastrous and devastating in its nature, that it is an epoch in the history of the state. It is beyond dispute that it was "an act of God," which human foresight could not have foreseen or reasonably anticipated, and against which human power could not defend. In this respect there is no controversy in this case, either in the record or arguments and briefs of counsel.

In support of this first averment of negligence, the plaintiff offered the evidence of John George Broxterman, who was the only witness perhaps who had any knowledge of the facts. He testified that this wall adjoining plaintiff's premises was constructed of solid stone masonry, 3 or 34 feet in thickness, extening the entire depth of the excavation and below the cement floor in the driveway cellar; that on Sunday, the day before the collapse of plaintiff's building, water was coming through the crevices of this wall

about 18 inches from the cellar floor, up to about 3 or 3 feet high, for a distance of 20 feet back from the curb line, and that "there was some little sand coming through on Sunday, very little, very slight, because the crevice was not large enough to let any sand through scarcely." While the interest of this witness was adverse to the interest of the plaintiff, he was the only witness having knowledge of these facts or that testified upon this subject. Plaintiff under the statute was permitted to cross-examine him to the same extent as if he had been called by the defendant.

This is the only evidence offered by the plaintiff tending to prove any defect in this wall. There is no evidence whatever in this record_that this wall at all other times and under all ordinary conditions was not amply sufficient for the protection of plaintiff's property. This defendant, in the construction and maintenance of its wall, was not required to anticipate such an extraordinary and unprecedented flood, and, even had it done so, it could hardly have built a wall that would have withstood such a devasting force. If, however, it could be said that this evidence that the flood waters of this extraordinary flood forced their way through the crevices in this wall, carrying "some little sand coming through on Sunday, very little, very slight, because the crevice was not large enough to let any sand through scarcely," tended to prove that this wall was in such a defective condition that it would not resist the waters of an ordinary flood, notwithstanding the fact that for many years it had met every requirement, not only of ordinary floods, but of the peculiar formation of the earth and soil in that locality, yet the further evidence of Broxterman clearly demonstrates that the condition of the wall was not even a contributing, much less a proximate, cause of the injury.

This witness further testified that early the following morning (Monday morning), about two or two and