The jury returned a verdict for the plaintiff, which was taken under leave reserved. Thereafter the judge entered a verdict for the defendant. The case comes here on the plaintiff’s exceptions to this action, tо various rulings on evidence, and to the denial of her motion for a new trial based on the inadequacy of dаmages.
The jury could have found these facts: On July 6, 1939, about noontime, the plaintiff and her sister entered the defendаnt’s millinery store, and, pursuant to an invitation by one of the saleswomen, went upstairs to the second floor where for about thirty-five to forty minutes they looked at the hats on display at several counters. The plaintiff then “started to go down the stairs on the right hand side with her hand on the balustrade”; her sister was next to her, and they went down stairs together. At about the second step the plaintiff pitched forward, her foot went out from under her, and she lost her grip оn the balustrade, with the result that she fell head first to the landing, which was half way down the stairs, and was injured. The stairs at the time of the accident were dirty; there was “an accumulation of dirt, pieces like candy paper, gum pаper and debris in general.” The stairs in the vicinity of where the plaintiff fell were covered with the same debris, and there was a skid mark on the second step. The “skid mark was just a heel
There was evidence introduced by the plaintiff to the effect that there was no carpet on the second floor; that the floor had the appearance of having been recently oiled and was very wet; and that after the accident the soles of the plaintiff's shoes were saturated with oil. The defendant’s evidence was to the contrary, and showed that the second floor on the day of the accident was completely covered by a carpet. When the jury returned with their verdict the judge, before recording it, asked them if they had determined whether on the day the plaintiff was injured there was oil on the defendant’s floor or whether it was covered with a carpet and, if they had, to state what the fact was. The jury, after answering that they had determined this, stated, “The carpet was there.” - -
1. Where, as here, the jury have answered a sрecial question, the answer must be treated as part of the verdict, and the facts established by it must be considered in determining the correctness of the judge’s ruling- under leave reserved. Thurlow v. Welch,
2. Exceptions were taken by the plaintiff to the testimony of a bookkeeper employed by Broоks Gill Company, a Boston carpet dealer. She was permitted to read from the original records and sales book of her employer, which showed that the defendant had purchased a carpet for the premises at 53 Summer Street (where the plaintiff was injured) in January, 1939, and that it was laid at those premises by one Clemente. The objections to this evidence on the grounds of remoteness and that it did not prove that the carpet was on the floor at the time of the accident six months later require little discussion. It tended to corroborate the testimony of the defendant’s store manager, admitted without objection, to the effect that Brooks Gill Cоmpany laid the carpet in January, 1939, and that it was never taken up. This was admissible in the discretion of the judge. The fаct that this evidence also showed sales of other carpet to other stores operated by thе defendant did not harm the plaintiff. Nor was the evidence open to the objection that it was not based on the personal knowledge of the witness. On findings that the judge might have made, the evidence was admissible under G. L. (Ter. Ed.) c. 233, § 78, as entries in records made in the usual course of business. Chadwick & Carr Co. v. Smith,
For reasons already discussеd in connection with the evidence of the bookkeeper, the admission of the testimony of Clemente thаt he laid the carpet on the defendant’s
Exceptions overruled.
Notes
The statute provides, however, that “lack of personal knowledge by the entrant or maker ” of the record may be shown to affect its weight; and it also provides that the court, in its discretion, before admitting the records may require the party offering the evidence to call as his witness one who has personal knowledge of the facts stated in the records.