Downing v. Jordan Marsh Co.

• Decision Date: 28 November 1919
• Citation: 125 N.E. 207,234 Mass. 159
• Parties: DOWNING v. JORDAN MARSH CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

234 Mass. 159

125 N.E. 207

DOWNING

v.JORDAN MARSH CO.

Supreme Judicial Court of Massachusetts, Suffolk.

Nov. 28, 1919.

Report from Superior Court, Suffolk County; W. P. Hall, Judge.

Action by Helen J. Downing against the Jordan Marsh Company, resulting in a directed verdict for defendant. On report to the Supreme Judicial Court. Judgment ordered for defendant.

Herbert A. Kenny, of Boston, for plaintiff.

Sawyer, Hardy, Stone & Morrison, of Boston (E. C. Stone and Gay Gleason, both of Boston, of counsel), for defendant.

CARROLL, J.

The plaintiff went to the defendant's store accompanied by her aunt, who intended to buy ‘some wings for a hat that * * * [the plaintiff] was to make.’ As they were leaving the store the plaintiff tripped on a wire mat near the exit on Summer street and was injured. The judge directed the jury to return a verdict for the defendant and reported the case.

There was evidence that the mat was about three feet wide and about four or five feet long, set in a ‘groove about an inch wide’; that the edge of the mat was above this groove and the plaintiff tripped on the edge of the mat, ‘which was a little higher than where it sets in’; that the mat was ‘humpy and badly curled,’ and there was a ‘bulge’ in it.

If the plaintiff came to the defendant's premises under an implied invitation, as distinguished from a mere license, to recover she must show that the defendant was negligent. Assuming but not deciding that the mat was defective, it did not appear for how long a time it had been so, or that the defendant or its servants knew, or might have known, of it by the use of reasonable care. If the plaintiff fell because she tripped against the edge of the mat which was lifted out of the groove, there is nothing in the evidence to show what caused this condition, or for how long a time it had existed prior to the plaintiff's injury. There was, therefore, no evidence that the defendant was negligent. Douglas v. Shepard-Norwell Co., 217 Mass. 127, 104 N. E. 491;Kelley v. W. D. Quimby & Co., 227 Mass. 93, 116 N. E. 409;Hathaway v. Chandler & Co., 229 Mass. 92, 118 N. E. 273;Zugbie v. J. R. Whipple Co., 230 Mass. 19, 119 N. E. 191.

The case at bar is to be distinguished from Wheeler v. Sawyer, 219 Mass. 103, 106 N. E. 592,Nye v. Louis K. Liggett Co., 224 Mass. 401, 113 N. E. 201, and Toland v. Paine Furniture Co., 179 Mass. 501, 61 N. E. 52. In the first of these cases the brass binding on the edge of the step near the top of...