Burke v. Kellough

• Citation: 235 Mass. 405,126 N.E. 787
• Parties: BURKE v. KELLOUGH.
• Decision Date: 01 April 1920
• Court: United States State Supreme Judicial Court of Massachusetts

235 Mass. 405

126 N.E. 787

BURKE

v.KELLOUGH.

Supreme Judicial Court of Massachusetts, Suffolk.

April 1, 1920.

Exceptions from Superior Court, Suffolk County; Marcus Morton, Judge.

Action of tort for injuries by Norah F. Burke against Eva T. Kellough, resulting in verdict for plaintiff for $650, and defendant excepts. Exceptions overruled.

Fred L. Norton, of Boston, for plaintiff.

Wilson, Juggins & Murphy, of Boston, for defendant.

PIERCE, J.

This case is before the full court solely on the defendant's exceptions to rulings admitting testimony in an action to recover damages for injuries resulting to the plaintiff from a fall, on a sidewalk abutting on the defendant's premises, caused by slipping on rough ice claimed to have formed from water which flowed from a broken conductor upon a building owned by the defendant.

It appeared in evidence from the testimony of the plaintiff that when she slipped and fell she ‘noticed a piece of pipe sticking up out of the street * * * right near the building and saw marks that her foot made as she fell.’ It further appeared in testimony that she visited the scene of her accident the same evening with a friend, Rendle, and ‘noticed hubbley ice on the sidewalk between the building and the other edge of the sidewalk.’ On the next morning the plaintiff, with Rendle, her sister, her counsel Mr. Norton, and his associate Mr. Jenney, went to the place of the accident. There had been a light snow during the night. She told her counsel where she fell; a broom was brought and her counsel ‘swept a strip across the sidewalk as large as four feet.’ She testified she ‘saw a mark on the ice which she was satisfied was the scrape she had made with the heel of her shoe when she fell because she saw it three times the night before.’ She further testified that she held the broom indicating the place where she fell when photographs were taken.

The defendant objected to the question put to the plaintiff, ‘Where was the bottom part of the broom at the time the photograph was taken with reference to the place where you fell?’ and excepted to the answer, ‘It was on the place where I slipped where I marked already with my foot.’ She also objected to the question put to the same witness, ‘Were there some measurements taken as to where you slipped and fell?’ and excepted to the answer, ‘Mr. Rendle measured.’

A deposition of the former asociate counsel, Jenney, was introduced in evidence. Without objection, he testified that he visited the premises with the plaintiff, her attorney and the witness Rendle; that he ‘noticed that the conductor from the roof was broken and was missing for a distance of ten or twelve feet above a steel elbow where the bottom part of the gutter apparently rested when it was in place.’ ‘Deponent was then asked the following question: ‘What was done while you were there relative to the snow on the sidewalk?’ Deponent, beginning to answer, said, ‘Miss Norah Burke was asked where she fell and she pointed out a certain spot.’ * * * At this point defendant objected to the portion of the answer then given,' but did not ask, nor did the presiding judge refuse, to have the answer stricken out. The deponent, without objection, continued, ‘Mr. Norton took a broom and swept off the snow at that point.’ The deponent was then asked, against the objection of the...