Diangelo v. United Markets, Inc.

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: WILKINS
• Citation: 64 N.E.2d 619,319 Mass. 143
• Parties: DIANGELO v. UNITED MARKETS, Inc.
• Decision Date: 01 February 1946

319 Mass. 143
64 N.E.2d 619

DIANGELO
v.
UNITED MARKETS, Inc.

Supreme Judicial Court of Massachusetts, Suffolk.

Feb. 1, 1946.

Exceptions from Superior Court, Suffolk County; O'CONNELL, Judge.

Action of tort for personal injuries by Josephine Diangelo against United Markets, Incorpoated. Verdict for plaintiff. On defendant's exceptions.

Exceptions sustained.

[64 N.E.2d 619]

Before FIELD, C. J., and LUMMUS, RONAN, WILKINS, and SPALDING, JJ.

[64 N.E.2d 620]

H. L. Barrett, of Boston, for plaintiff.

W. F. Henneberry, of Everett, for defendant.

WILKINS, Justice.

This is an action of tort for negligence by a customer against a store owner to recover for injuries due to slipping on a substance on the floor. The jury found for the plaintiff. The defendant's exceptions relate to the admission of evidence, to the denial of a motion for a directed verdict, and to the charge.

On Saturday, February 6, 1943, at some time after 11 A.M. the plaintiff, who had made a purchase in the defendant's store in Boston, started toward a side door leading to Blackstone Street. To do so it was necessary to walk up a ramp connecting the floor of the rear of the store with the floor of the front of the store, which was about two feet lower. As she started to ascend the ramp, which was between the cheese and cooky counters, and when she had taken one step uphill, ‘her foot slipped and she fell.’ Her ‘foot slipped before she got to the ramp and [she] fell onto the ramp.’ She then looked and saw what caused her to fall. There was ‘some black stuff’ stuck to the floor. It was about the size of her hand, a quarter of an inch thick, black on top, and brown on the bottom. It had been there since Christmas time. She used to go to the store two or three times a week. There was a ‘lot more’ of the substance on the way from the Hanover Street entrance to the space between the cheese counter and the cooky counter. It was a rainy day, and there were ‘a lot of people’ in the store. The foregoing could have been found on the testimony of the plaintiff.

1. Subject to the defendant's exception the plaintiff was asked, ‘Was there any other like this near this piece?’ She answered, ‘It is all around the store.’ This exception cannot be sustained because without objection she testified in identical language on corrs-examination. Abele v. Dietz, 312 Mass. 685, 691, 45 N.E.2d 970, 144 A.L.R. 1015, and cases cited. Commonwealth v. Parrotta, 316 Mass. 307, 312, 313, 55 N.E.2d 456.

2. The defendant introduced in evidence the following answers of the plaintiff to interrogatories. 20. Q. ‘Please state where you were at the time your injury occurred.’ A. ‘On the incline leading from the cheese counter to the side entrance.’ 21. Q. ‘Please state what you were doing at the time of your injury.’ A. ‘I had just finished purchasing some cheese and was starting to leave the store.’ 22. Q. ‘Please state when you first observed the thing or condition which you allege caused your injury.’ A. ‘After I fell.’ Later there was offered by the plaintiff and admitted in evidence, subject to the defendant's exception, the plaintiff's answer to interrogatory 16: Q. ‘Please describe fully and in detail how the accident occurred, stating what you saw, what you heard, what you did and what happened to you in the order in which said events took place.’ A. ‘While shopping in defendant's store my foot caught on a hard sticky foreign substance which was ground into the flooring, causing me to fall. An employee of the store picked me up. The manager was notified and advised me to go home and get medical treatment at once.’ It is not questioned but that the plaintiff could read as evidence here own answers to interrogatories on the same subject matter as those earlier read by the defendant. Freeman v. United Fruit Co., 223 Mass. 300, 304, 111 N.E. 789;Reid v. Bacas, 317 Mass. 240, 242, 57 N.E.2d 632; G.L.(Ter.Ed.) c. 231, § 89. We think that interrogatory 16 related to the same subject matter as interrogatories 20, 21 and 22. Churchill v. Ricker, 109 Mass. 209, 211, 212;Demelman v. Burton, 176 Mass. 363, 364, 57 N.E. 665. The defendant also contends that the answer was not altogether responsive, and should have been excluded for that reason. Falzone v. Burgoyne, 317 Mass. 493, 497, 498, 58 N.E.2d 751. This objection could apply only to the statement that an employee picked her up and to the conversation with the manager. The plaintiff had previously testified that she was ‘assisted’ by an employee from the fruit counter and that she talked with the manager, although the nature of the conversation had not been given. The defendant was not harmed. Kelley v. Boston, 296 Mass. 463, 466, 467, 6 N.E.2d 371.

3. After the...