Corthell v. Great Atlantic & Pacific Tea Co.
| Decision Date | 26 June 1935 |
| Citation | 196 N.E. 850,291 Mass. 242 |
| Parties | CORTHELL v. GREAT ATLANTIC & PACIFIC TEA CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Exceptions from Superior Court, Essex County; Gray, Judge.
Action of tort by May J. Corthell against the Great Atlantic & Pacific Tea Company. To an order entering verdict for defendant in accordance with leave reserved upon recording of verdict for plaintiff in the sum of $250, plaintiff excepts.
Exceptions overruled.
W. E. Sisk, of Lynn, for plaintiff.
J. A Lane, of Boston, for defendant.
The defendant operated a retail grocery and meat store in Lynn, heated by hot air registers in the floor. On May 23, 1932, the plaintiff entered the store and walked towards the grocery counter. She stopped to take a ‘ cookie’ from a plate held by a person dressed as a clown, who was engaged in exhibiting ‘ cookies,’ though not as a servant of the defendant. When she started to walk again, she found that one of her heels had become caught in one of the openings in a register. In consequence of that, she fell and was hurt.
The judge denied the defendant's motion for a directed verdict, subject to its exception. After a verdict for the plaintiff, the judge, under leave reserved (G. L. [Ter. Ed.] c. 231, § 120), entered a verdict for the defendant, subject to the plaintiff's exception. The latter exception brings the case here.
The register was described in an answer by an officer of the defendant to an interrogatory filed by the plaintiff. Since the answer was introduced in evidence by the plaintiff, and was not contradicted by any evidence, the plaintiff is bound by it. Gordon v. Bedard, 265 Mass. 408, 411, 164 N.E. 374; Slamin v. New York, New Haven & Hartford Railroad, 282 Mass. 590, 592, 185 N.E. 353; Dome Realty Co. v. Cohen (Mass.) 194 N.E. 679. The description showed a ‘ steel register’ of ‘ the ordinary type in common and general use,’ containing seventy-two openings, each seven-eighths of an inch square.
Obviously the plaintiff's heel, if not worn out of shape, had to be very small at the bottom in order to get caught in such a register. She described the heel as ‘ an ordinary heel that she wore all the time,’ although she testified that at the trial she was wearing shoes with broader heels.
Since due care is that degree of care which a man of ordinary prudence would use under the circumstances (Labrecque v. Donham, 236 Mass. 10, 127 N.E. 537), the fact that a certain device or practice is in common use tends to show that its use is not negligent. Cass v. Boston & Lowell Railroad, 14 Allen, 448, 450; McMahon v. McHale, 174 Mass. 320, 326, 54 N.E. 854; Dolan v. Boott Cotton Mills, 185 Mass. 576, 579, 580, 70 N.E. 1025; Moynihan v. Holyoke, 193 Mass. 26, 78 N.E. 742; Pitcher v. Old Colony Street Railway, 196 Mass. 69, 71, 81 N.E. 876,13 L.R.A. (N. S.) 481, 124 Am.St.Rep. 513,12 Ann.Cas. 886; Long v. Athol, 196 Mass. 497, 508, 82 N.E. 665,17 L.R.A. (N. S.) 96; McCrea v. Beverly Gas & Electric Co., 216 Mass. 495, 498, 104 N.E. 365; Hecht v. Boston Wharf Co., 220 Mass. 397, 405, 107 N.E. 990, L.R.A. 1915D, 725, Ann.Cas. 1917A, 445; Draper v. Cotting, 231 Mass. 51, 59-61, 120 N.E. 365; Bowen, Inc., v. G. R. Armstrong Manufacturers' Supplies, Inc., 241 Mass. 444, 447, 135 N.E. 556; Cronan v. Armitage, 285 Mass. 520, 525, 190 N.E. 12. But that fact is not conclusive of due care, for a large number of persons may be wanting in due care in their usual practices. Maynard v. Buck, 100 Mass. 40; Dolan v. Boott Cotton Mills, 185 Mass. 576, 580, 70 N.E. 1025; Smith v. Gammino, 225 Mass. 285, 114 N.E. 205; Wilson v. Alexander, 230 Mass. 242, 119 N.E. 754; Bernier v. Pittsfield Coal Gas Co., 257 Mass. 188, 190, 153 N.E. 449.
In the present case the register was of a type ‘ in common and general use.’ Although that is not conclusive of the defendant's due care, the plaintiff had the burden of introducing evidence warranting a finding of negligence. There was no evidence that registers with smaller openings were in common use. When the court can see that the physical facts, with any other evidence that may exist, do not warrant the inference that a reasonable man in the position of the defendant would have anticipated danger and guarded against it, a verdict for the plaintiff is not warranted. Lyons v. Boston Elevated Railway, 204 Mass. 227, 90 N.E. 419; Phinney v. Eastern...
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