293 Mass. 232 | Mass. | 1936
This is an action of tort, tried in the Superior Court to a jury, in which the plaintiff claimed that, while she was a customer in the defendant’s store and while she was walking down a stairway which led from the street floor to the basement, she slipped on .a large area of foreign, slippery and slimy substance which the defendant permitted to be on a portion of said stairway, which condition it could have remedied by the exercise of reasonable diligence. At the trial there was a verdict for the plaintiff. The judge reserved leave to enter a verdict for the defendant, and upon motion of the defendant ordered the entry of such a verdict. The plaintiff excepted to this order, and the case comes before this court on all the evidence which is material to the issue of due care of the plaintiff and negligence of the defendant in its aspect most favorable to the plaintiff.
Such evidence, so considered, warranted the finding of facts, in substance, as follows: The accident happened on
There was uncontradicted testimony from both sides that the defendant maintained a restaurant in the basement located at the foot of the stairway with one aisle between the stairs and the several counters, a distance of about nine feet; that the restaurant was in operation at the time of the accident, with ten or more counters and waitresses in attendance; that there was no obstruction between where the waitresses were at the counters and the stairs; and that the stairs were about five or six feet wide and there were other attendants at the store at these other counters. An employee stationed about three or four yards from the foot of the stairway saw the plaintiff fall three or four steps from the bottom. The stairway was plainly visible from other counters which were attended by other employees and it could be seen readily and easily from each of them. The manager of the restaurant was on
There was no direct evidence as to when the substance came into existence on the stairs. Nevertheless, from its character, its consistency, dryness, hardness and general appearance the jury were warranted in drawing an inference, as they presumably did under the instructions of the judge, that it had been on the stairway long enough to have been known of and removed before the accident. The case falls within the class of decisions covered by White v. Mugar, 280 Mass. 73, Manell v. Checker Taxi Co. 284 Mass. 151, Hudson v. F. W. Woolworth Co. 275 Mass. 469, Hartford v. Boston Elevated Railway, 280 Mass. 288, DePrizio v. F. W. Woolworth Co. 291 Mass. 143, and Anjou v. Boston Elevated Railway, 208 Mass. 273; and is distinguishable from Rosenthal v. Central Garage of Lynn, Inc. 279 Mass. 574, Sisson v. Boston Elevated Railway, 277 Mass. 431, Frappier v. Lincoln Stores, Inc. 279 Mass. 14, McBreen v. Collins, 284 Mass. 253, Cartoof v. F. W. Woolworth Co. 262 Mass. 367, O’Leary v. Smith, 255 Mass. 121, O’Neill v. Boston Elevated Railway, 248 Mass. 362, Mascary v. Boston Elevated Railway, 258 Mass. 524, Bornstein v. R. H. White Co. 259 Mass. 34, and Renzi v. Boston Elevated Railway, ante, 228, on the fact that in the case at bar a substance of the character described could not have been where it was without being exposed to the view of the waitresses at the ten counters near the foot of the stairs for a length of time sufficient for notice to the manager, or employee having the stairway in charge, and for the removal of the condition, or the protection of the users of the stairs against the condition.
Exceptions sustained.
Judgment for the plaintiff on the verdict.