315 Mass. 84 | Mass. | 1943
The jury returned a verdict for the plaintiff in her action of tort to recover damages for personal injuries. Thereafter, under leave reserved, the trial judge allowed a motion for entry of a verdict for the defendant. G. L. (Ter. Ed.) c. 231, § 120. The plaintiff’s exception to the allowance of this motion presents the only question. -
The jury could have found that the plaintiff and her sister were invitees in the defendant’s theatre. They occupied adjoining seats, the plaintiff’s sister sitting next to the aisle. As they were leaving, the sister stepped into the aisle, leaving her seat down, -and as the plaintiff was pass
The defendant’s duty to the plaintiff as an invitee need not be repeated. See Keenan v. E. M. Loew’s, Inc. 302 Mass. 309, 311; Cheetham v. Crescent Gardens Operating Co. 311 Mass. 320. ¡The defendant was not an insurer of the plaintiff’s safety. The vital question in the case is whether upon the evidence it could have been found that the condition of the seat in question was such that, in the exercise of reasonable care, it should have been discovered by the defendant before the plaintiff received her injury.
There is no suggestion in the evidence that the construction of the seat was improper or that seats like it were not in general use in theatres, see Lord v. Sherer Dry Goods Co. 205 Mass. 1, 2-3; Rynn v. Fox-New England Theatres, Inc. 299 Mass. 258; Sterns v. Highland Hotel Co. 307 Mass. 90, 93, or that the condition of the seat, in relation to the splinter, was anything more than transitory and of recent origin. Compare Keenan v. E. M. Loew’s, Inc. 302 Mass. 309, 310, 312; McGillivray v. Eramian, 309 Mass. 430, 431. The description of the splinter, as it is called, does not serve to indicate the length of time it had been there. Cheetham v. Crescent Gardens Operating Co. 311 Mass. 320, 321, and cases cited. See Mucha v. Northeastern Crushed
Exceptions overruled.