Foley v. F.W. Woolworth Co.

• Decision Date: 28 January 1936
• Parties: FOLEY v. F. W. WOOLWORTH CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

293 Mass. 232

199 N.E. 739

FOLEY

v.F. W. WOOLWORTH CO.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 28, 1936.

Exceptions from Superior Court, Suffolk County; Beaudreau, J.

Action of tort by Jennie M. Foley against the F. W. Woolworth Company, tried in the superior court to a jury. Verdict was ordered entered for defendant in accordance with leave reserved, after the jury found for plaintiff, and plaintiff brings exceptions.

Exceptions sustained, and judgment entered for plaintiff on the verdict.

W. A. Murray, of Boston, for plaintiff.

W. I. Badger, of Boston, for defendant.

PIERCE, Justice.

This is an action of tort, tried in the superior court to a jury, in which the plaintiff claimed that, while she was a customer in the defendant's store and while she was walking down a stairway which led from the street floor to the basement, she slipped on a large area of foreign, slippery and slimy substance which the defendant permitted to be on a portion of said stairway, which condition it could have remedied by the exercise of reasonable diligence. At the trial there was a verdict for the plaintiff. The judge reserved leave to direct a verdict for the defendant, and upon motion of the defendant that a verdict be entered for it in accordance with leave reserved, the judge ordered a verdict for the defendant. The plaintiff excepted to this order, and the case comes before this court on all the evidence which is material to the issue of due care of the plaintiff and negligence of the defendant in its aspect most favorable to the plaintiff.

Such evidence, so considered, warranted the finding of facts, in substance, as follows: The accident happened on March 10, 1931, between one and two p. m. of a business day. It was raining, and the plaintiff carried in her hand an umbrella and a hat bag. Her errand was to buy brushes which she used in her business and were sold in this basement. She went down the steps and reached the third step from the bottom. When she got to that step and bore the weight of her right foot on it, she slipped to the floor at the foot of the stairway. Two young men lifted her from the floor. She then turned around to see what she had slid on and saw a ‘mess' on the third stair extending from the lower part of the fourth out to the edge of the third stair. It was about a foot in width and in some places it was thin and in others thick. The substance was vomit. In some places it was as thin as paper, in others as thick as cardboard; it was drier than it was wet and was a mixture of liquids and solids, hard in places and a little soft in others. The plaintiff testified, subject to the defendant's exceptions which do not appear in the record to have been perfected, that about twenty minutes after the accident she observed that the place where she slipped had been cleaned off, that it was cleaner than the rest of the stairs and that the condition of the area surrounding the place where the mess had been taken away was ordinary dust and dirt.

There was uncontradicted testimony from both sides that the defendant maintained a restaurant in the basement located at the foot of the stairway with one aisle between the stairs and the several counters, a distance of about nine feet; that the restaurant was in operation at the time of the accident, with ten or more counters and waitresses in attendance; that there was no obstruction between where the waitresses were at the counters and the stairs; and that the stairs were about five or six feet wide and there were other attendants...