317 Mass. 132 | Mass. | 1944
The female plaintiff, a business visitor, by these actions of tort seeks to recover for personal injuries sustained by slipping on the floor of premises occupied by both defendants. The male plaintiff, her husband, sues for consequential damages. These cases are here upon exceptions to a directed verdict for each defendant. The only testimony was by the female plaintiff, hereinafter called the plaintiff. On October 11, 1940, a clear, dry day, about 9:30 a.m. she entered the premises, which consisted of a large well-lighted room on the street floor used in part for display purposes, in order “to pay a bill to both defendants.”
As to the responsibility for the premises of the respective defendants the record merely states: “It was agreed at the trial that the defendant, Malden and Melrose Gas Light Company, occupied the street floor jointly with the defendant, Malden Electric Company, under an arrangement by which the Malden and Melrose Gas Light Company paid a fixed monthly rental and the Malden Electric Company furnished the light, heat and janitor service.” From this it could have been inferred that the defendant Malden Electric Company, and not the defendant Malden and Melrose Gas Light Company, was in charge of waxing the floor, if this was in fact done. Compare Teall v. Marlow, 275 Mass. 448; Fagan v. Mayor, Aldermen & Commonalty of New York, 84 N. Y. 348, 352.
If the plaintiff fell because of what was, strictly speaking, a foreign substance, and this was not placed there by either of the defendants, there could be no recovery, as it does not appear how long the condition described had existed, or that the defendants ought to have known of it. Cheetham v. Crescent Gardens Operating Co. 311 Mass. 320. Wetmore v. McLellan Stores Co. 315 Mass. 443. But if the floor had been waxed, and if the substance on which the plaintiff slipped was about half the size of her hand and was wax that was sticky, oily, and wet, this would be evidence of improper application or of negligent invitation to walk on the floor before it was dry. Judson v. American Railway Express Co. 242 Mass. 269, 271. Paull v. Radlo, 293 Mass. 521, 525. See Zanes v. Malden & Melrose Gas Light Co. 298 Mass. 569, 570. There was no direct testimony that the substance was wax or, indeed, that anyone had waxed the floor. The plaintiff, though, testified that after she fell she told Buckley that there was wax on the floor. This was of no effect as an admission by either defendant, because there was no evidence as to Buckley’s duties or as to his authority by silence or otherwise to bind in this respect the one defendant which was his principal. Parsons v. Dwightstate Co. 301 Mass. 324, 327. Liberatore v. Framingham, 315 Mass. 538, 541. It was mere hearsay. Rankin v. Brockton Public Market, Inc. 257 Mass. 6, 11. Blake v. Great Atlantic & Pacific Tea Co. 266 Mass. 12, 14. Incompetent evidence, however, which has been admitted without objection is entitled to its probative force. Rapson v. Leighton, 187 Mass. 432, 435. DuBois v. Powdrell, 271 Mass, 394, 397. Mahoney v. Harley Private Hospital, Inc. 279 Mass. 96, 100. Stearns v. Warren, 284 Mass. 268, 275. See Solomon v. Dabrowski, 295 Mass. 358, 359; Ryan v. DiPaolo, 313 Mass. 492, 494. Although this evidence was slight, the
Since the waxing of the floor could have been found to have been done by the defendant Malden Electric Company, it follows that its motion for a directed verdict should not have been allowed. The motion of the defendant Mal-den and Melrose Gas Light Company, however, was rightly allowed, as it could not have been inferred that this defendant should have discovered the condition of the floor before the plaintiff fell. O’Leary v. Smith, 255 Mass. 121, 123. White v. Mugar, 280 Mass. 73, 75. Not enough appears in the meager record to bring the action against this' defendant within Rouillard v. Canadian Klondike Club, Inc. 316 Mass. 11, or within Timmins v. F. N. Joslin Co. 303 Mass. 540, and Barron v. McLellan Stores Co. 310 Mass. 778.
In the action against the Malden Electric Company the exceptions are sustained. In the action against the Malden and Melrose Gas Light Company the exceptions are overruled.
So ordered.