Beach v. S.S. Kresge Co.

Decision Date18 April 1939
Citation20 N.E.2d 409,302 Mass. 544
PartiesBEACH v. S. S. KRESGE CO. (two (cases).
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court


Exceptions from Superior Court, Hampden County; Hammond, Judge.

Actions by Hazel M. Beach and Jay Beach, wife and husband, against the S. S. Kresge Company, the wife for injuries from a fall caused by slipping on ice cream upon the floor in defendant's store, and the husband for consequential damages. Verdict directed for defendant, and plaintiffs bring exceptions.

Exceptions overruled.

James F. Egan, of Springfield, for plaintiffs.

Harold P. Small and James S. Bulkley, both of Springfield, for defendant.

QUA, Justice.

The plaintiffs are husband and wife. The wife's action is for personal injury sustained on August 16, 1934, while she was a customer in the defendant's store, as the result of slipping on some ice cream which had fallen upon the floor. The husband's action is for consequential damages.

The principal question is whether there was any evidence for the jury of the defendant's negligence with respect to the presence of the ice cream upon the floor. On this issue the wife's own testimony was to this effect: It was a rainy afternoon and ‘very bad out’. As the plaintiff entered the store she proceeded from twelve to fifteen feet or a little more towards a stairway leading to the basement. There was ‘a lot of sawdust’ on the floor. There was sawdust completely over ‘this general whole floor space.’ ‘It wasn't all over the floor space. It was scattered, now and then, scattered around.’ She fell about half way between the brass rail on the stairway and the corner of the ice cream counter. She had to go by ‘a lot of people standing at the entrance eating ice cream, and there were more people in the aisle near the stairway. The piece of ice cream on which she slipped ‘was like a scoop of ice cream.’ It was ‘round on all sides just as if it had come out of the top of an ice cream cone.’ It seemed as though there was a scoopful of ice cream where she fell, and the sawdust was all around, ‘all over the ice cream and all mixed in it.’

The plaintiffs' daughter, called by the plaintiffs, testified that the sawdust on the floor was ‘kind of soggy’; that you could see where her mother stepped in the ice cream with her heel, and there was some ice cream left ‘where the sawdust was covered over’; that it was ‘like an ice cream cone full’; that sawdust was scattered all around the ice cream counter and where she and her mother had come in at the door, around the front of it'; that there was ‘sawdust on the ice cream and it was kind of wet’; that the ice cream was ‘right near the ice cream counter’; that she did not know whether the ice cream was in the shape of a scoop; that it looked ‘as though it was a half scoop full and was a five cent size’; that ‘the sawdust was coming from the door all the way in and about down to the right hand side of the stairway’; that there was quite a lot of it, about in inch, on the floor, thicker in some places than in others; that the floor was damp and people's shoes were probably wet from the rain ‘as they walked down.’ Some carried umbrellas. When asked whether the ice cream or the sawdust was ‘closer to the floor’ this witness answered, ‘Well, the ice cream you could see most, because there wasn't much sawdust where she scraped it.’ Where it was scraped away you could see the ice cream. There was an area perhaps four inches long, ‘where she scraped it.’

Both witnesses testified to the presence of numbers of people about the door, the ice cream counter, and the approach to the stairway.

We have stated the evidence in considerable detail because of the plaintiffs' contention that it would warrant the jury in finding that the defendant had knowledge of the presence of the ice cream on the floor and had used the sawdust to cover it up without removing it. The evidence fails to support that contention. Neither the testimony of Mrs. Beach nor that of her daughter has any tendency to show that the sawdust had been placed upon the floor with reference to the ice cream, whether the sawdust covered the entire floor or was scattered in various places. A finding that the sawdust had been put in one place would be contrary to all of the evidence. The dampness of the floor near an entrance, due to the tramping of many wet feet, would furnish at least as plausible a reason for the spreading of sawdust as would the dropping of one scoopful of ice cream. With sawdust on the floor and customers coming and going, the ice cream would quickly become covered and mixed with sawdust. Moreover, Mrs. Beach had stepped into it before the witnesses saw it.

The evidence wholly fails to show that the defendant rather than some customer was responsible for the dropping of the ice cream, or that it had been on the...

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