Cummings v. Copley

• Decision Date: 31 March 1923
• Citation: 138 N.E. 803,244 Mass. 448
• Parties: CUMMINGS v. COPLEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

244 Mass. 448

138 N.E. 803

CUMMINGS

v.COPLEY.

Supreme Judicial Court of Massachusetts, Suffolk.

March 31, 1923.

Report from Superior Court, Suffolk County; Robert F. Raymond, Judge.

Action of tort by Ellen E. Cummings against Alexander H. Copley for damages for personal injuries sustained by plaintiff when leaving premises owned by defendant and occupied by a tenant. Verdict for plaintiff for $2,500, and case reported. Verdict sustained.

The action was tried with another action against the tenant, and the jury found for plaintiff in each action. The action against the landlord was reported at defendant's request. Defendant requested rulings (1) that on all the evidence the jury must return a verdict for him; (2) that there was no legal evidence to warrant a finding that the accident was due to the alleged defects in the premises; (3) that there was no evidence to warrant a finding that defendant when letting the premises made an express agreement to repair without notice; (4) that the condition described was not such a defect as rendered defendant liable; (5) that if plaintiff at the time of the accident stepped out of the shop sideways and while talking with and looking at the tenant she could not recover. The charge, so far as it referred to the question of plaintiff's due care, was as follows:

‘Now, up to within a few years ago, 1914, I think it was, the burden was on the plaintiff to prove that she was in the exercise of due care, but in that year a statute was made by the Legislature saying that when this question arises in a case there is the presumption that the plaintiff was in the exercise of due care, unless the defendant denies it and sustains the burden of proving that she was not.

‘Miss Cummings, this young woman, is presumed to be in the exercise of such care as the ordinarily careful person would exercise in the same circumstances unless the defendant has shown to the contrary-has shown that she didn't measure up to that standard of care. Now that drives us back, of course, to the facts that have been shown on the stand in the case, and I call to your attention those facts, cautioning you again, as I have done already, that you are not to take my recollection nor my statement of the facts now or ever unless it harmonizes with your own recollection, and it is your recollection that is to control always; but in a general way what were the fact there bearing on the due care of Miss Cummings, the plaintiff? Well, she had left her shoe in the shoe shop for repair of some sort, as I recall it, shortly before; she was going off on some picnic or vacation, and she wanted her shoes, and she went round there that night to get her shoes, and you have had photographs, and you have had descriptions of the condition of the property. Now I want you to bear in mind the condition of the property there as you determine it to be, because there is a good deal of variance, perhaps of contradiction, difference in view anyway, as to the condition of that property, particularly the step in front. Those photographs which were put in have been taken to illustrate, bring clearly to your attention, the condition of those premises, and you have the privilege; they will be in your hands to use them for that purpose; you are old enough and experienced enough to have seen photographs before; you could see that those photographs as put in by the different sides presented each a different situation there. You remember that Oliver Cromwell turned down a painting, I believe a picture made of him, because he said, if his picture was made, he wanted it made correctly and show the wart on his nose. Now here the question largely with reference to this photograph is whether it shows the ‘wart on the nose,’ whether it shows the actual condition of things there at the time when Miss Cummings got her fall; that depends on whether the photographs were taken immediately after, or so closely after, that no changes had been made, and the clearness of the photograph, and all of those things which I need not go over, but which I am presenting to you now, in order to caution you to scrutinize the photographs, in order to say whether or not they present the thing fairly. You heard the photographers, one, two, who took the different pictures, give certain views about their experience and how the camera ought to be set and the distance that it should be set in order to see a thing in its proper proportion, and there was another word that was used there-perspective, perhaps that is the more important word of the two, whether things are presented in their proper perspective. Now, bear all those things in mind and get all the help that you can from those photographs as to the condition of the premises, because you know here that there is a charge that those premises were defective and dangerous. I am discussing this, remember,...