294 Mass. 582 | Mass. | 1936
This is an action of tort, brought by the plaintiff to recover damages for personal injuries sustained on January 13,1934, at about 5:30 p.m., while, in the exercise of due care, she was walking along Atlantic Avenue, Boston, in front of the defendant’s premises numbered 555. The case was tried in the Superior Court without a jury. “At the end of the evidence,” which must be assumed to be “the end of evidence set out in the bill of exceptions,” the defendant, before final argument, presented the following requests for rulings: “1. Upon all of the evidence and pleadings, the plaintiff is not entitled to recover. 2. Upon all of the evidence, there is no evidence to warrant a finding that the defendant was negligent. 3. The plaintiff has not proven by a fair preponderance of the evidence that the defendant was negligent. 4. There is no evidence to warrant a finding
The testimony for the plaintiff, which was not contradicted by the defendant, warranted a finding that the plaintiff on the evening in question, while walking on the sidewalk in front of the building owned by the defendant, heard glass falling; that she was struck on the back, left shoulder and left hand by some falling glass; that she received a severe cut on the wrist; and that immediately afterwards she noticed some fragments of glass on the sidewalk.
There was testimony from one Salva Ventullo which warranted a finding that he was walking along the sidewalk at the time of the accident to the plaintiff; that when he was opposite the defendant’s premises he heard a rattle above as if something were loose; that he looked up and saw glass coming from overhead in front of the defendant’s building; that he ducked toward the side of the building and immediately there was a crash of some falling glass; and that there were considerable fragments of glass on the sidewalk and in the gutter immediately adjacent to the defendant’s premises.
The testimony of Alexander Vogt, an investigator, called by the plaintiff, warranted a finding that within a day or two after the accident he called at the defendant’s place of business and made a complete inspection of the windows; that on inspecting the premises from the inside he found that none of the windows was broken and none had the appear-
The testimony of Joseph F. Condon, called by the plaintiff, warranted the finding of the following facts: He was a police sergeant of the city of Boston. About an hour after the accident he went to the defendant’s place of business to determine whether or not there had been a burglary there. He went up the fire escape on the outside and examined the windows to see if any had been broken. He found no broken windows in the defendant’s premises. He found on the fourth floor a window with a new pane of glass in it which appeared to him to have been recently installed, because this window was clean while the others were dirty; on the sill of that window he found some fragments of glass. It was dark at that time, and raining and storming, and the wind was blowing hard.
The defendant’s testimony warranted a finding that there had been no repairs made on any of its windows for about a month prior to the time of the accident; that all repairs made on the building were made by Berrigan and Company, carpenters and jobbers; and that on the Monday following the accident a representative of the defendant noticed broken glass on the sidewalk in front of its building, and on investigation found pieces of glass on the fire escape on the second floor.
Berrigan, called by the defendant, testified, in substance, that when notified he made necessary repairs and charged
One Seeley testified, in substance, that he was in the employ of the defendant; that around January 13, the day of the accident, his attention was directed to some glass on the sidewalk in front of the defendant’s building; that he was asked by the defendant to inspect the windows on the outside, and did so; that he found glass on the fire escape on the Monday morning following the accident; and that it “looked something like the glass which he found on the sidewalk.”
There was testimony that about 12:30 p.m. on the day of the accident, as well as every week day excepting Saturday, an employee of the defendant examined all the windows in the defendant’s premises from the inside of the building for the purpose of seeing whether or not they were locked; and that at 12:30 p.m. on the day of the accident the windows were in good condition and there was no broken glass about any of the windows on the inside.
There was testimony that the adjacent building occupied by the New England Waste Company was a five-story building, while that of the defendant was a four-story building; that on the fifth floor of the building occupied by the New England Waste Company there was a window which had been broken for many years; and that the window was boarded up but fragments of a broken pane of glass were found in the window after the accident to the plaintiff.
Assuming in favor of the defendant that its requests for rulings “At the end of the evidence” are the equivalent of a statement that the requests for rulings were presented to the court at the close of all the material evidence, it is obvious that the bill of exceptions shows no sufficient evidence to support so much of the answer as alleges “that the injuries alleged were caused in whole or in part by plain
The fact, if believed by the judge, that a window over the sidewalk on the fourth floor of the defendant’s building was glazed by an independent contractor between December 14 and 18, 1933, in such a manner that fragments of glass were left on the window sill and fire escape landing through inadvertence or negligence of an employee of the contractor affords no defence to this action, because it was the duty of the defendant, at least after the departure of the contractor, to ascertain whether any objects of peril to persons on
We do not discuss the individual requests for rulings. It is sufficient to say that we find no reversible error in the refusal of the judge to give any of them.
Exceptions overruled.