Dunbar v. Ferrera Bros.

• Decision Date: 28 May 1940
• Citation: 306 Mass. 90,27 N.E.2d 675
• Parties: CHARLES DUNBAR v. FERRERA BROS. INC.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

306 Mass. 90

27 N.E.2d 675

CHARLES DUNBAR v. FERRERA BROS. INC.

Supreme Judicial Court of Massachusetts, Suffolk.

May 28, 1940

November 15, 1939.

Present: FIELD, C.

J., DONAHUE LUMMUS, DOLAN, & RONAN, JJ.

Negligence, Store. Law of the Trial. Evidence, Presumptions and burden of proof. Practice, Civil, Exceptions: whether error harmful, what questions open; Charge to jury. Proximate Cause.

Evidence warranted a finding of negligence of the manager of a grocery store either in improperly hanging up a "reaching stick" on a shelf or in coming in contact with it after he had hung it up, so that it fell immediately thereafter and struck a child standing near it.

After a trial of a case on the theory that the plaintiff was an invitee on the defendant's premises, an instruction, not excepted to by the defendant, that no question was raised but that the plaintiff was an invitee, became the law of the trial and that issue was not open to the defendant in this court.

In an action for personal injuries sustained by a child in the defendant's store, a refusal to strike out testimony that the defendant's manager had stated to the witness that he was "very sorry" the accident had happened was not prejudicial to the defendant.

A plaintiff in an action for personal injuries was bound to prove by a preponderance of the evidence that the injuries were caused by the defendant's negligence, but he was not bound to exclude other causes by a preponderance of the evidence.

No error was shown in an action for personal injuries by a fragment of an extended charge on the issue of proximate cause, that the plaintiff could recover "for all those injuries which follow in sequence," which by its context referred to certain ailments shown by the evidence.

TORT. Writ in the Superior Court dated September 9, 1935. At the trial before Swift, J., there was a verdict for the plaintiff in the sum of $1,500, of which the plaintiff remitted $500. The defendant alleged exceptions.

J. L. Yesley, for the defendant.

J. B. Abrams, (S.

H. Litner with him,) for the plaintiff.

DONAHUE, J. The plaintiff, a minor, two years of age, accompanied his mother to a grocery store conducted by the defendant in the neighborhood where the plaintiff lived.

The mother went to the store to make a purchase. While in the store the plaintiff was injured when a stick, which was hanging on a shelf, fell and struck him on the head. The stick, which was referred to at the trial as a "reacher" or "reaching stick," was used by employees of the defendant in taking packages and other merchandise from the upper shelves in the store. There was a verdict for the plaintiff and various exceptions taken by the defendant at the trial are here considered.

1. The defendant took an exception to the denial of its motion for a directed verdict in its favor. The main contention of the defendant under this exception is that the evidence did not warrant a finding that the plaintiff's injury was due to the negligence of an employee of the defendant.

There was evidence warranting the finding of the following facts: The mother holding the plaintiff by the hand, entered the store door and saw the defendant's manager standing near the wall at the left. On that side of the store there were shelves on which merchandise was displayed, but no counter. On the opposite side of the store there was a counter with shelves behind it. The mother and the plaintiff went to the left wall of the store where the manager stood and the mother asked for a package of crackers for the plaintiff. Thereupon the manager who had a "reaching stick" in his hand, hung it upon a shelf on the left wall of the store and started to go to the other side of the store where crackers were kept. The plaintiff and his mother remained near the shelves at the left wall. The manager passed very close to the hanging stick and had gone a distance which could be found to be less than eight feet when the stick fell and injured the plaintiff's nose. Neither the plaintiff nor the mother touched the stick as it hung on the shelf. No other person except the manager was near the stick in the short interval of time between its being hung on the wall and its fall.

This is not, as the defendant contends, a case where the only evidence as to the source of the plaintiff's injury is the mere fact that an object fell, or where the cause of such fall is purely conjectural. Compare Rankin v. Brockton Public Market, Inc. 257 Mass. 6, 10; Mahoney v. Great Atlantic & Pacific Tea Co. 269 Mass. 459 , 460. The evidence warranted the finding that no act or omission of any person other than the manager had any causal connection with the fall of the stick. A metal projection at one end of the stick was adapted to fit into a groove in the shelf provided for the purpose of holding the stick, and there was evidence warranting the inference that, if the projecting parts of the stick were properly put in the groove, the stick would not fall unless some degree of force was applied to it. There was also evidence to support findings that the manager, after hanging the stick on the shelf, passed "very close" to it in proceeding to go across to the counter, and that he had gone a distance of less than eight feet when the stick fell. A conclusion was warranted that the fall of the stick was due to negligence of the manager, either in leaving it insecurely in the groove of the shelf, or in coming in contact with it in passing. The plaintiff was not obliged to show the particular act of negligence that caused the stick to fall. Adams v. Dunton, 284 Mass. 63 , 66, and cases cited. Gregory v. American Thread Co. 187 Mass. 239 , 242. Furthermore, the jury might have drawn the inference that an accident of this nature does not happen according to common experience without negligence of a person in control of an object that fell and caused the plaintiff's injury. Cushing v. Jolles, 292 Mass. 72 , 74. Navien v. Cohen, 268 Mass. 427 , 431. O'Neil v. Toomey, 218 Mass. 242 , 244.

The defendant further contends that its motion for a directed verdict in its favor should have been granted for the reason, as the defendant now asserts, that, though the mother was an invitee, the evidence did not warrant a finding that the plaintiff was an invitee. It relies on certain language appearing in Grogan v. O'Keeffe's Inc. 267 Mass. 189 , 192, and Howlett v. Dorchester Trust Co. 256 Mass. 544 , 546. It is...