315 Mass. 673 | Mass. | 1944
The first action is for personal injury sustained by the plaintiff on April 7, 1939, while she was a customer at the defendant’s market in Fitchburg as a result of alleged negligence of the defendant. The second action is by the husband of the plaintiff in the first action to recover for medical expenses. The plaintiff in the first action will be called the plaintiff. In each action the trial judge directed a verdict for the defendant.
There was evidence tending to show these facts: There was “a big crowd in the store.” The plaintiff had made some purchases in the defendant’s self-service department and had started toward the cashier’s booth with her son, who accompanied her, and who was carrying the purchases, when it occurred to her that she had forgotten something. She returned for the forgotten goods, leaving her son at or near the booth. The cashier’s booth consisted of a rectangular wooden box eight feet long and four feet wide and apparently about the height of an ordinary counter for the sale of goods. About half of the booth was topped by a shelf or counter two feet wide running lengthwise of the booth. In front of this counter and parallel with it was an aisle or passageway so arranged that patrons leaving the self-service department would pass in front of the counter and could deposit their purchases upon it to be checked by the clerk or cashier, whose position was inside the booth behind the counter, and who would receive payment. In the end wall of the booth nearer the self-service department and not on the long side where the counter was and not immediately adjacent to the aisle through which customers
The plaintiff testified, in substance, that when she returned to the booth with her second lot of purchases, instead of passing along the aisle in front of the booth lengthwise of the counter, she came to the corner of the counter, put the goods on the counter, and “wanted to tell the clerk in the cash” to put the goods with those her son already had, so that all could be paid for together. But “they did not look at her, so she tried to give it to the clerk and push the goods over and she struck something with her foot and tumbled” inside the booth. It could be found that what she struck was the lower part of the end wall of the booth, which had not been cut away under the entrance. On cross-examination the plaintiff answered, “Yes,” to the question, “I said that as you were entering into the cashier’s booth you fell?”
There was expert testimony that the construction of the booth was defective in that there was no gate or rail at the opening, because of “the opportunity to stumble at the bottom,” and because the counter had no “overhang” and there was no “toe space” under it.
It is plain that the plaintiff, as a patron of the store, was not invited to go behind the counter into the booth designed to be occupied by the cashier, and that the defendant is not liable for negligence in not maintaining the entrance to the booth in a safe condition for the plaintiff’s use. Herman v. Golden, 298 Mass. 9, 12. Davis v. Bean, 298 Mass. 135. Rathgeber v. Kelley, 299 Mass. 444. Urban v. Central Massachusetts Electric Co. 301 Mass. 519. Lerner v. Hayes-Bickford Lunch System, Inc., ante, 42. It is not material in this case whether the booth was or was not constructed in a manner safe for employees of the defendant who alone
There was no error in excluding the testimony of a witness whose business was the designing and equipping of stores, and who was offered as an expert, that the method of constructing the booth would create “hazards to customers” and that this type of cashier’s booth is not safe “from the customer’s point of- view.” The plaintiff had already been allowed to show all the characteristics of the booth and
The defendant’s exceptions have become immaterial and are deemed to have been waived.
Plaintiffs’ exceptions overruled.
Defendant’s exceptions waived.