Douglas v. Shepard Norwell Co.

Decision Date27 February 1914
Citation217 Mass. 127,104 N.E. 491
PartiesDOUGLAS v. SHEPARD NORWELL CO. (two cases).
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court
COUNSEL

Harry F. R. Dolan and James H. Morson, both of Boston, for plaintiff.

Peabody Arnold, Batchelder & Luther and Willard B. Luther, all of Boston, for defendant.

OPINION

SHELDON J.

As the right to maintain the second of these actions depends upon the right of the first named plaintiff, we shall speak of her as the plaintiff.

It is now settled that the carpet was not in a defective or dangerous condition by reason of being loose. The slight ridge which was testified to could not have furnished evidence of negligence on the part of the defendant. Jennings v. Tompkins, 180 Mass. 302, 12 N.E. 265. The utmost height of the ridge was one-sixteenth of an inch greater than the projection of the nail was claimed to be in that case. On the other hand, that was an abrupt projection while this came up gradually and was uniform in its maximum elevation for about four inches. In itself it was certainly less dangerous and according to common observation afforded less evidence of negligence than was the case with that nail. See, also, McGowan v. Monahan, 199 Mass. 296, 298 85 N.E. 105, 17 L. R. A. (N. S.) 928, 127 Am. St. Rep. 501.

But the plaintiff has contended that the jury should have been allowed to pass upon the question whether the combined effect of the looseness of the carpet and the existence of the ridge might not have constituted a defect, and so afforded ground on which she could maintain her action. She was in the store by the defendant's invitation, and it owed her a duty to use reasonable care to keep the stairway and the carpet in a safe condition for her use. Toland v. Paine Furniture Co., 179 Mass. 501, 61 N.E. 52.

We are of opinion however that she cannot recover upon this ground. Upon all the evidence it is left a matter of conjecture whether such a combination as has been stated existed at all before the time of the accident, or if so, whether it could have been discovered and remedied by the exercise of reasonable care on the part of the defendant. In this respect the case is like Norton v. Hudner, 213 Mass. 257 100 N.E. 546, 44 L. R. A. (N. S.) 79, and Toland v. Paine Furniture Co., as that case was first presented, in 175 Mass. 476, 56 N.E. 608. How far these conditions, if already existing, were aggravated by the strain put upon the...

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