¶1ON MOTION FOR REHEARING.
¶2This case is not based primarily on the duty of the dealer of coca-cola to inspect, but is based primarily upon the duty of the dealer to know (even though that knowledge be imputable knowledge only) that the food is not unwholesome; and where, in addition to the facts alleged in the petition and set forth in the opinion above, it was also alleged that "in drinking the first of the coca-cola plaintiff did not detect any defects or that there was anything in said coca-cola until after having drunk half or more of said bottle of coca-cola he detected fine, hard particles therein, and upon examination found small pieces of glass therein; that he swallowed at least two if not more of said hard matters or particles, the exact number of which he can not give; that the particles upon examination of the remaining undrunk coca-cola in your petitioner’s mouth upon investigation he discovered that they were glass, that he found in said bottle of coca-cola a piece of curved glass about one inch long and about five-sixteenths of an inch wide, and another piece of glass just a little shorter in length and a little smaller in width,” we think it may be reasonably inferred from these pleaded facts and the other alleged facts that the glass in the coca-cola was in such size and character as to amount to a defect which a reasonably prudent dealer should have discovered before delivering it to the customer. From all the facts pleaded, we think a conclusion is fairly deducible that the defect was reasonably observable. See King Hardware Co. v. Ennis, supra. This case sounds in tort, and the negligence as pleaded consists in the violation of the duty to know, under the circumstances, what the dealer should or ought to have known, and to refrain from causing injury.