DeFilippo v. DiPietro

• Decision Date: 27 November 1928
• Citation: 265 Mass. 186
• Parties: ANNIE DeFILIPPO v. ANDREW DiPIETRO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

265 Mass. 186

ANNIE DeFILIPPO v. ANDREW DiPIETRO.

Supreme Judicial Court of Massachusetts, Suffolk.

November 27, 1928

November 14, 1928.

Present: RUGG, C.

J., CROSBY CARROLL, WAIT, & SANDERSON, JJ.

Landlord and Tenant, Common stairway. Negligence, Of person owning or controlling real estate, Contributory. Evidence, Competency. Practice, Civil, Exceptions.

At the trial of an action of tort by a tenant against his landlord for personal injuries resulting from a fall upon a defective stairway under the defendant's control, there was evidence that the plaintiff had been a tenant for a number of years; that the defect in the stairway upon which the plaintiff fell had been called to the janitor's attention two or three weeks previous to the accident; that the defect had existed for about four weeks previous thereto; that, during those four weeks, the plaintiff walked up and down the stairway almost every day and had seen the defect; and that at the time of the accident he did not look to see where he was stepping and was not as careful as on previous occasions, and the defect had gone out of his mind and he was not thinking of it, although it was then so light that he could have seen the defect if he had looked. The trial judge denied a motion by the defendant that a verdict be ordered in his favor. Held, that

(1) A finding was warranted that the defect arose after the commencement of the tenancy;

(2) It could not be ruled as a matter of law that the plaintiff was guilty of contributory negligence;

(3) The motion properly was denied.

The burden is upon a party alleging exceptions to set forth in the bill of exceptions enough to show harmful error; this court is not required to infer that there was such error if the bill is susceptible of the contrary inference.

An issue at the trial of the action above described was whether the plaintiff had lost weight because of the accident. The bill of exceptions stated that the judge, subject to the defendant's exception, admitted testimony by a witness for the plaintiff that the plaintiff was weighed upon a scale where, by putting a penny in a slot, a card came out with figures on it indicating the weight, which the witness stated; and that, in answer to a question, whether the witness had seen the plaintiff weighed, he answered, " . . [the plaintiff] showed me the card that the machine slipped out." Held, that

(1) Such evidence was competent if the witness was present at the weighing and himself saw the card with the figures on it come out of the machine;

(2) The defendant had not set forth enough in the bill of exceptions to show clearly that the witness was not present at the weighing and did not see the slip; and the exception must be overruled.

TORT, by a tenant against her landlord, for personal injuries sustained when the plaintiff fell upon a defective stairway in the control of the defendant. Writ dated December 3, 1925.

At the trial in the Superior Court, before Walsh, J., there was evidence that the plaintiff had been a tenant of the building for a number of years and that her husband had called the janitor's attention to the defect in the stairway upon which she fell two or three weeks previous to the accident. Other material evidence is stated in the opinion. In addition to the testimony described therein, concerning the weighing machine the plaintiff's husband was asked...