288 Mass. 79 | Mass. | 1934
This is an action of tort to recover compensation for personal injuries sustained by the plaintiff and consequential damages. The case was referred to an auditor who made findings of fact. The plaintiff’s motion for judgment was allowed and the defendants excepted.
The motion for judgment was allowed rightly. See Ballou v. Fitzpatrick, 283 Mass. 336.
The auditor found that on December 1, 1928, the plaintiff sustained personal injuries when, in attempting to get into a
The defendants’ duty — breach of which would constitute negligence — to persons invited to enter the premises for the purpose of parking an automobile thereon for hire was to use reasonable care to keep the premises in a reasonably safe condition for such persons’ use according to the invitation, or at least to warn them against any dangers attendant upon this use which were not known to them or obvious to any ordinarily intelligent person and either were known or in the exercise of reasonable care ought to have been known to the defendants. Crone v. Jordan Marsh Co. 269 Mass. 289, 291. Fielding v. S. Z. Poli Realty Co. 274 Mass. 20, 22.
The subsidiary facts found warranted the conclusion that the plaintiff, when injured, was using the premises according to the defendants’ invitation. The premises were seven thousand square feet in area, of which about three thousand square feet were paved with concrete. A sign conspicuously displayed bore the words “Parking — 25 cents.” The owner and operator of the automobile, which was occupied also by the plaintiff and two other women, drove it into the parking space for the purpose of parking it. The four women got out of the automobile and an attendant in the employ of the defendants parked the automobile lengthwise over a greasing
The finding that the plaintiff’s injury was caused by negligence of the defendants or their agents was warranted by the subsidiary facts found. The greasing pit was rectangular, constructed of concrete and approximately nineteen and three fourths feet long, three feet wide, and six feet deep. There was a curbing of concrete around it, close to the edge of the opening, about four or five inches high, about four or five inches wide at the sides and somewhat wider at the front and back. The wheels of the automobiles parked over the pit rested on the concrete pavement outside the curbing. There was not sufficient light between the two automobiles to enable any one attempting to pass in the three-foot space between them “to discern the existence of the pit,” there “was no fence, rail or barrier of any kind, other than said . . . curbing, surrounding said pit . . . there was no warn
The burden of proving contributory negligence — want of due care — of the plaintiff was on the defendants. G. L. (Ter. Ed.) c. 231, § 85. O’Connor v. Hickey, 268 Mass. 454, 461. Neither the plaintiff nor any one of her companions had noticed the greasing pit before the accident. In view of this finding and of the findings in regard to insufficient light and to the conduct of the attendants, the conclusion that the plaintiff was not in the exercise of due care was not required as matter of law. Marston v. Reynolds, 211 Mass. 590. Sleeper v. Park, 232 Mass. 292, 296. Goldstein v. Slutsky, 254 Mass. 501.
Exceptions overruled.