306 Mass. 337 | Mass. | 1940
This is a report of two actions of tort brought by the plaintiff to recover damages for personal injuries that resulted from her slipping and falling on the kitchen floor of a lodging house owned by the defendants. By direction of the trial judge verdicts were returned for the defendants, and the cases were reserved for report to this court for the determination of the correctness of the judge "having so directed the jury.” G. L. (Ter. Ed.) c. 231, § 111. The report contains stipulations of the parties in substance providing that if, apart from evidence, if any, improperly admitted over the defendants’ exceptions in each case, verdicts were rightly ordered, judgment is to be entered for the defendants, as the case may be; otherwise judgment is to be entered for the plaintiff.
The record discloses that the defendants saved several exceptions to the admission of evidence, but they have not argued any of them. This court ordinarily "spends no time in the elucidation of matters not deemed by those in interest as worthy of their own reasoning faculties,” Commonwealth v. Dyer, 243 Mass. 472, 508, and the fact that their right to present their contentions here was saved to them by a report rather than by a bill of exceptions does not require a different procedure from that prevailing with respect to a bill of exceptions or an appeal. See Carangias v. Market Men’s Relief Association, Inc. 293 Mass. 284. No opinion as to the merits of the exceptions that have not been argued is required, and we proceed to consider the cases on the evidence presented by the record. See Mahoney v. Harley Private Hospital, Inc. 279 Mass. 96, 100; Revere v. Revere Construction Co. 285 Mass. 243, 247;
The plaintiff and her husband occupied a room on the first floor of the premises in question at the time of the plaintiff’s injury, and we assume, without deciding, that at that time she had the rights of an invitee in her use of the kitchen where she fell, see Domenicis v. Fleisher, 195 Mass. 281, and we also assume that her injuries were sustained by reason of the slippery condition of the floor. The kitchen, five and one half by eleven and one half feet, contained a sink, table, range and wooden cabinet. The entrance was through another room by a door which was about four feet from the right hand wall. In this wall there was a window four feet high and about two feet three inches wide, entirely above the range. From the door to the table it was “very close to three feet.”
The jury could have found that at the time of her injury, four o’clock on April 10, 1937, in “broad daylight,” the plaintiff went to the kitchen, and as she stepped on the floor her foot slipped and she fell. While on the floor, she saw a “streak” where her heel or shoe had scraped. “Her first step in the door, her foot went out from in under her. . . .” This streak was distinguishable from the rest of the floor — which was covered with linoleum — it was lighter. Two days before the injury the defendants’ maid had waxed the floor, and there was evidence that the female defendant said that she told the maid that “she thought she had put too much on, and not to put any more on, but . . . [the female defendant] told . . . [the witness] that . . . [the maid] did put more on, on April 9.” There was further testimony that the female defendant said, after the accident, “Oh, I wish . . . [the maid] hadn’t put that wax on the floor”; that she said how sorry she felt that it had happened and that “if she hadn’t let . . . [the maid] put any wax on the floor, that it might not have happened.” The plaintiff’s husband, who saw the floor shortly after the accident, testified that its condition appeared to be about the same as it had been previously; that it looked “neat and clean”; that there was no outstanding appearance
There was evidence that the defendants had never used wax on the floor before; that on the Monday before the injury, which was on a Saturday, the maid had washed the floor and applied a commercial liquid wax that dries in twenty minutes, which she had used on her own floors for a number of years; that on Friday, the ninth, she applied another coat that dried in twenty minutes, leaving the floor dry and smooth, and “polished like ordinary hospital corridors. It was nicely polished”; that the linoleum did not take a very good “shine” and had a dull finish, with a rougher surface than the linoleum on the “court room” floor and in about the same condition as to slipperiness. The plaintiff contends that, upon the permissible findings of fact, the jury was warranted in finding that one or both of the defendants were negligent.
There are some things a landlord may do with respect to that part of the premises under his control to which a tenant has access that are not acts of negligence although injury to the tenant may thereby result. For example, in McGowan v. Monahan, 199 Mass. 296, 298, it was held that placing a mat in a common passageway before the outer door of a tenement was, as matter of common experience, usual and ordinary, and a thing that all using the passageway must be taken to expect, "and no warning is necessary when it is first done.” The absence of carpets and the use of linoleum as a floor covering, together with the use of wax on a wooden floor or linoleum, are matters of common experience, by no means unusual or out of the ordinary. It has been held that an owner, in treating a floor, may use wax or oil or other substances in the customary manner without incurring liability to one who slips and falls thereon unless the owner is negligent in. the materials he uses or in the manner of applying them, Smith v. Union & New Haven Trust Co. 121 Conn. 369, 371; that
The plaintiff contends that actionable negligence of one or both of the defendants could have been found (1) from the testimony of statements that the jury could have found that the female defendant made after the injury, and, (2) by way of comparison, in consequence of the testimony that the floor was polished like ordinary hospital corridors, and, so far as slipperiness was concerned, that it was in about the same condition as the linoleum on the court room floor. As to the second contention, we are of opinion that mere slipperiness, in and of itself, does not establish negligence, McGuire v. Valley Arena Inc. 299 Mass. 351, and that the comparison afforded by the testimony, in and of itself, did not establish a basis on which to find negligence. As to (1), there is no contention that the floor was improperly constructed or that it was out of repair, or that the wax that was applied was unfit or improper for the purpose for which it was used. Unless, therefore, the jury was warranted in finding that the wax was improperly applied, we are of opinion that the plaintiff fails to establish a breach of any duty of the defendants. The alleged statements of the female defendant that she wished the maid had not put wax on the floor, and that, if sh^ had not, the
It follows that in each case judgment is to be entered on the verdict. $0 ordered.