O'Brien v. Harvard Restaurant & Liquor Co.

• Decision Date: 31 December 1941
• Citation: 310 Mass. 491,38 N.E.2d 658
• Parties: CHESTER J. O'BRIEN v. HARVARD RESTAURANT AND LIQUOR CO., INC.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

310 Mass. 491

38 N.E.2d 658

CHESTER J. O'BRIEN v. HARVARD RESTAURANT AND LIQUOR CO., INC.

Supreme Judicial Court of Massachusetts, Suffolk.

December 31, 1941

November 5, 1941.

Present: FIELD, C.

J., DONAHUE, QUA DOLAN, & RONAN, JJ.

Negligence, Invited person. Evidence, Admissions, Interrogatories. Practice Civil, Interrogatories.

Answers to interrogatories introduced in evidence by the interrogating party do not preclude the interrogated party from relying on other evidence more favorable to him.

Evidence respecting a back stairway leading from a public barroom to a toilet in the basement, and that a customer, in response to his inquiry, was told by the bartender where the toilet was, did not warrant a ruling that the customer was invited to use the stairway although it did warrant a finding to that effect.

TORT. Writ in the Municipal Court of the City of Boston dated February 1, 1937.

Upon removal to the Superior Court, the action was tried before Buttrick, J. There was a verdict for the plaintiff in the sum of $6,500. The defendant alleged exceptions.

H. E. Cryan &amp J.

A. Bradley, for the defendant, submitted a brief.

B. H. Stoodley, (R.

E. Kempton with him,) for the plaintiff.

QUA, J. In this action for personal injuries sustained by the plaintiff from a fall on a stairway on premises of the defendant where alcoholic beverages were sold to be consumed on the premises the defendant excepts (1) to the refusal of the judge to charge the jury that the plaintiff was a licensee and not an invitee on the part of the premises where the accident happened, and (2) to the instruction actually given that the plaintiff was an invitee. The principal question is whether the judge could rightly instruct the jury as matter of law that the plaintiff was an invitee upon the stairs.

There was evidence tending to show the following: At the rear of the defendant's premises was a bar, to the left of which, as one faced it, was a door leading to a stairway to the basement. The stairway was reached through a room containing a wash bowl for customers to use. There was an electric light near the head of the stairway and another near its foot. A men's toilet, which employees used, was in the basement at the end of a corridor next to a ladies' room also used by employees. The defendant's customers were never forbidden to use the stairway. Customers "sometimes" used it in going to the toilets. There were signs over the doors of the toilets, indicating the men's toilet and the ladies' toilet. The toilets were used "for customers and help" and were the only ones on the premises. The stairway was three feet wide, old, dark, and worn, and beer barrels were rolled down it. The toilets were sixteen feet down a corridor from the bottom of the steps. In the corridor downstairs there was a public telephone booth. The plaintiff, with two other people, entered the premises and ordered a drink. Before it was served he asked the bartender where the toilet was and was told that it was in the basement. He started to descend the stairs to the basement to go to the toilet when the edge of a step gave way and he fell. In answer to interrogatories the defendant stated that it was "customary" for customers to go over the stairway to use the toilet in the basement and that the defendant knew that the customers used the stairway in going to the toilet: but the defendant was not concluded by these answers from relying upon any evidence more favorable to it. Tighe v. Skillings, 297 Mass. 504 , 507.

We are of opinion that upon this evidence it could not properly be ruled as matter of law that the plaintiff had been invited to use the stairs. The plaintiff had the burden of proving the invitation as a part of his case. When proof rests upon oral evidence and upon inference a judge can rarely rule as matter of law that the burden has been sustained, even though the affirmative evidence may seem to him so strong that he would set aside a verdict rendered contrary to it. McDonough v Metropolitan Life Ins. Co. 228 Mass. 450 , 452, 453. Duggan v. Bay State Street Railway, 230 Mass. 370 , 379. Lennon v. Cohen, 264 Mass. 414 , 426. Salem Trust Co. v. Deery, 289 Mass. 431, 433. Donahue v. Leventhal, 302 Mass. 393 , 395. The jury may disbelieve the evidence, even that which is uncontradicted, except where a...