314 Mass. 497 | Mass. | 1943
In this action for personal injuries, there was evidence that the plaintiff, a pedestrian, was injured on January 25, 1938, when she slipped on some substance on the sidewalk in front of a gasoline filling station, and fell. The plaintiff got a verdict, and the case is here on an exception by the defendant to the denial of a motion to direct a verdict in his favor.
The plaintiff testified that her foot slipped on a “hard substance,” that there were “hard crusts and she saw a skid mark from her heel about a foot long,” that “when she put her foot down originally it felt as if a hard, crusty substance was there and her foot or heel just crushed into it causing her to skid,” that “after she got through the top of it and down a bit it seemed very greasy and slippery,” that “it looked to her like oil,” that there seemed to be gasoline trickling from the hose on the arm of the gasoline pump, onto the sidewalk, that there seemed to be patches of “this oil hard crusted substance” around there on the sidewalk, and that as she was being carried into the station after her fall she noticed a coating of sawdust on the sidewalk near to and even on the outer edges of the patch on which she slipped. She testified that the substance on which she slipped was not snow nor ice. She admitted that she had given a signed statement to an investigator, 'in which she said that the sidewalk was wet and that she did not know whether it was oil or what it was, and in which she did not mention any hard, crusty substance. She testified that she told the investigator that it was some foreign substance, but she did not know what it was. The plaintiff was the only witness who testified to the presence
The case is not one in which the plaintiff definitely withdrew testimony of the existence of a defect, and substituted testimony less favorable to her, as in Sullivan v. Boston Elevated Railway, 224 Mass. 405, Leland v. United Commercial Travelers of America, 233 Mass. 558, 563, Hennessey v. Cities Service Refining Co. 282 Mass. 487, 490, Crowley v. Swanson, 283 Mass. 82, 84, 85, and Osborne v. Boston Consolidated Gas Co. 296 Mass. 441, 444.
The plaintiff’s earlier testimony as to a crusty, greasy, slippery substance that looked like oil was considerably shaken by her later testimony, but her earlier testimony was not withdrawn, and remained for the consideration of the jury. Cameron v. New England Telephone & Telegraph Co. 182 Mass. 310, 311. Tierney v. Boston Elevated Railway, 216 Mass. 283. Gold v. Spector, 247 Mass. 110, 111. Carp v. Kaplan, 251 Mass. 225, 228. Goodell v. Sviokcla, 262 Mass. 317, 319. Martin v. Boston Elevated Railway, 262 Mass. 542, 544. Newman v. Levinson, 266 Mass. 264, 267. Coyle v. Worcester Consolidated Street Railway, 273 Mass. 475, 476, 477. Thibeault v. Poole, 283 Mass. 480, 482. Bennett v. Fitzgerald, 284 Mass. 535, 537. Jennings v. Bragdon, 289 Mass. 595, 597. Garland v. Stetson, 292 Mass. 95, 98. Goodwin v. Walton, 298 Mass. 451, 453. Sluskonis v. Boston & Maine Railroad, 299 Mass. 413, 415. Black-man v. Coffin, 300 Mass. 432, 437. Donovan v. Johnson, 301 Mass. 12, 13. Ruane v. Doyle, 308 Mass. 418, 422. Bander v. Metropolitan Life Ins. Co. 313 Mass. 337, 342.
Upon the evidence it could have been found, we think, that the substance upon which the plaintiff slipped came from the operation of the filling station, and was on the sidewalk because of negligence in that operation. There was testimony that “oil was serviced to automobiles by
Exceptions overruled.