312 Mass. 299 | Mass. | 1942
This is an action of tort to recover compensation for personal injuries sustained by the plaintiff as a result of falling on the “front steps” of premises, admitted by the defendant to have been owned by him and under his control at the time of the accident. He also admitted due receipt of proper notice of the accident.
The declaration is in two counts, recited to be for the same cause of action. At the close of the evidence the defendant moved for a directed verdict. The judge directed a verdict for the defendant on the second count, but denied the defendant’s motion as to the first count, subject to the defendant’s exception. The case was submitted to the jury, who returned a verdict for the plaintiff which was recorded with leave reserved under G. L. (Ter. Ed.) c. 231, § 120; and thereafter, on motion of the defendant, the judge entered a verdict for him under the leave reserved. The case comes before us on the plaintiff’s exceptions to that action of the judge.
The first count of the plaintiff’s declaration alleges that on February 2, 1939, she was lawfully on the premises in question, which were under the control of the defendant, “when she was caused to fall and sustain injuries by reason of stepping on an unnatural accumulation of snow and ice on the premises . . . which was caused to be thereon all owing to the negligence of the defendant, his agents or servants.” The defendant’s answer contained a general denial and alleged contributory negligence on the part of the plaintiff.
The plaintiff’s exception to the entry of the verdict for the defendant under leave reserved presents the question of law to be considered. “The burden of proof rested upon the plaintiff to establish the allegations of” her “declaration. The test to determine the correctness of the action of the trial judge in ordering the entry of a verdict for a defendant under leave reserved is whether the evidence' in its aspect most favorable to the plaintiff could rightly be found to support the contentions essential to the mainte
There was evidence that when the plaintiff’s employer, the tenant, rented the apartment in the premises involved, the defendant agreed that his janitor would keep the steps clean and safe, and free from ice and snow.
The evidence would not have warranted the jury in finding that the ice on the steps was an unnatural accumulation of snow and ice. The evidence was to the effect that there was ice on the steps, “clear ice.” There was no evidence that it had accumulated because of dripping from or having been .otherwise diverted in unnatural amounts by any defect in the premises.
Since, as already observed, the evidence would not have warranted the jury in finding that there was any unnatural accumulation of snow or ice upon the steps in question, thefe was, as argued by the defendant, a variance between the declaration and proof. The rule of pleading, “both at common law and under the statute, is that a declaration must state concisely and with substantial certainty the substantive facts constituting the cause of action, with such clearness and precision that the defendant may be
Exceptions overruled.