Brogie v. Vogel
Decision Date | 02 March 1965 |
Citation | 205 N.E.2d 234,348 Mass. 619 |
Parties | Paul J. BROGIE v. Theodore VOGEL et al. |
Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Andrew G. Meyer, Boston, for defendants.
John M. Mullen, Boston, for plaintiff.
Before WILKINS, C. J., and SPALDING, CUTTER, SPIEGEL and REARDON, JJ.
Brogie seeks to recover for personal injuries incurred when, while a social guest, he fell down cellar stairs in a house in Franklin, New Hampshire, owned by the Vogels. The evidence most favorable to Brogie is set out below.
Brogie, his wife, and his wife's sister (Vogel's mother) drove from Massachusetts to Franklin. They arrived in the early evening. Brogie and at least two Vogels left their coats in the kitchen. The Brogies and the Vogels then talked for a time in the living room. Other guests were expected and someone suggested that those present shouls hang up their coats before these guests arrived. Mr. and Mrs. Vogel, and the senior Mrs. Vogel, 'all hung up their coats.' Brogie hung his coat up behind a door in or near the dimly lighted kitchen. The light inside that door was not turned on although there was a light switch there. It was turned on after the accident by the younger Mrs. Vogel.
The door, instead of leading to a closet, led to the cellar stairs. It was possible that clothing was hanging on both sides of the cellarway. 'On opening the cellar door one would see ski boots, shoes, and other objects on a shelf on the right side of the stairway,' shown by photographs to have extended out about one foot over the stairs at the level of the kitechen floor.
As Brogie hung up his coat, he attempted to find a shelf on which to put his new hat. He No warning had been given to Brogie 'whether that was a closet or cellar stairway.'
The trial judge denied the Vogels' motion for a directed verdict based upon the pleadings and the evidence. The jury returned a verdict for Brogie. The only exception before us is that taken by the Vogels to the denial of the motion for a directed verdict. 1
1. It was correctly agreed by counsel that the applicable substantive law was that of New Hampshire. In Massachusetts the substantive law governing an action of tort for physical injury is that of the place where the injury occurred. Goodale v. Morrison, 343 Mass. 607, 610, 180 N.E.2d 67. See Gregory v. Maine Cent. R. R., 317 Mass. 636, 639-640, 59 N.E. 471, 474, 159 A.L.R. 714, in which it was said,
2. New Hampshire substantive law is more favorable to Brogie's position than that of Massachusetts. See Hashim v. Chimiklis, 91 N.H. 456, 457, 21 A.2d 166, 167 () ; Mitchell v. Legarsky, 95 N.H. 214, 216, 60 A.2d 136 ( ); Maxfield v. Maxfield, 102 N.H. 101, 103, 151 A.2d 226; Restatement: (and Restatement 2d: [Tent. draft No. 5, April 8, 1960]), Torts, § 342. See also Pickford v. Abramson, 84 N.H. 446, 447-448, 152 A. 317 ( ); Deacy v. McDonnell, 131 Conn. 101, 104, 38 A.2d 181. Compare the more strict substantive rule in Massachusetts concerning the limited duty owed to social guests, i. e. to refrain from acts of gross negligence. O'Brien v. Shea, 326 Mass. 681, 682, 96 N.E.2d 163; Pandiscio v. Bowen, 342 Mass. 435, 437, 173 N.E.2d 634; Callahan v. Boudreau, 345 Mass. 405, 406, 187 N.E.2d 668. In the circumstances, questions of fact for the jury were presented concerning (a) whether the Vogels should have taken precautions to avoid concealing the cellar stairs by clothes or should have warned Brogie about the stairs, in view of the general resemblance of the upper part of the stairs to a clothes closet for which it was used, and (b) whether Brogie himself was in the exercise of due care. The trial judge could not properly have ruled that Brogie was guilty of contributory negligence as matter of law. See Martin v. Reis, 344 Mass. 32, 37, 181 N.E.2d 580; LUZ V. STOP & SHOP, INC. OF PEABODY, MASS., 202 N.E.2D 771.A The jury would have been warranted in concluding that Brogie was not negligent in stepping into what appeared to be a dark or dimly lighted closet. See Gordon v. Cummings, 152 Mass. 513, 517-518, 25 N.E. 978, 9 L.R.A. 640; ...
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