Annie v. Kelley

• Citation: 227 Mass. 93
• Court: United States State Supreme Judicial Court of Massachusetts
• Decision Date: 25 May 1917
• Parties: ANNIE v. KELLEY v. W. D. QUIMBY AND COMPANY, INCORPORATED& another.

227 Mass. 93

ANNIE v. KELLEY v. W. D. QUIMBY AND COMPANY, INCORPORATED& another.

Supreme Judicial Court of Massachusetts, Suffolk.

May 25, 1917

March 12 1917.

Present: RUGG, C J., DE COURCY, CROSBY, PIERCE, & CARROLL, JJ.

Negligence, In maintaining show-case.

It seems that one having the privilege of selling candy in a store under a contract with the proprietor and using there a show-case supplied by the proprietor, which the proprietor has agreed to keep in repair, owes the duty to his customers to use reasonable care to protect them from injuries due to defects in the show-case arising from want of repair.

In an action against one engaged in the business of selling candy in the store of another under a contract with the proprietor, for personal injuries sustained by reason of a piece of glass three or four inches wide and an inch or two thick, which owing to the displacement of a bracket that supported it had become detached from the showcase used by the defendant falling upon the plaintiff's foot when she was standing at the defendant's counter waiting to have delivered to her some candy that she had bought from the defendant, if there is nothing to show when the bracket had been forced from the position it originally was in nor how long before the accident it was out of place, and there is nothing about the appearance of the bracket from which an inference can be drawn as to how long it had been out of its original position, and no evidence that the defendant or his servant knew of any defect, there is no evidence of negligence on the part of the defendant, and he is entitled to have a verdict ordered for him.

TORT, originally against W. D. Quimby and Company, Incorporated, a corporation, and William D. Quimby, for personal injuries sustained by the plaintiff on June 20, 1913, by reason of a heavy piece of glass, which had become detached from the candy show-case of the defendants in the Henry Siegel Company's store in Boston, falling upon the plaintiff's right foot. Writ dated March 10, 1914.

Later the plaintiff discontinued her action against the W. D. Quimby and Company Incorporated, leaving William D. Quimby, individually, as the sole defendant.

In the Superior Court the case was tried before Chase, J. The evidence is described in the opinion. At the close of the evidence the defendant asked the judge to order a verdict for him. The judge refused to do so, and submitted the case to the jury.

In the course of his charge the judge instructed the jury as follows:

"The question is in this case, this element of it, how long had it [the defect in the show-case] existed. Had he [the defendant] had as a man who was bound to exercise reasonable care for the safety of the people whom he had invited there, a reasonable opportunity to discover this defect, if it existed? And that involves, as I said a moment ago, the question of duration of time during which the defect had existed. When had this defect arisen? Who was responsible for the condition? Was the attention of the defendant Quimby called to this? If it wasn't, should it have been? If the defect existed when he began business there that morning, should he or some of his employees there whose duty it was -- as they have testified -- to look out for the counter and clean it, have noticed it? And having noticed it, should they have reported it? Those are the questions.

"Now, if you find that the place was not reasonably safe, and if you find that Mr. Quimby or his employees knew it or ought to have known about it in the exercise of reasonable care for the safety of their customers, then the question comes, Was the defendant negligent in not warning the plaintiff of this defect?"...