Frost v. McCarthy

• Decision Date: 07 January 1909
• Citation: 200 Mass. 445,86 N.E. 918
• Parties: FROST v. McCARTHY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

200 Mass. 445

86 N.E. 918

FROST v. McCARTHY et al.

Supreme Judicial Court of Massachusetts, Suffolk.

January 7, 1909

Jan. 7 1909.

COUNSEL

Elmer D. Sherburne and George W. Buck, for plaintiff.

M. O Garner, for defendant McCarthy.

OPINION

RUGG J.

This is an action of tort to recover damages for personal injuries sustained by the plaintiff while coming out of the retail lace store of the defendant McCarthy, at the corner of West and Tremont streets in Boston. These exceptions relate only to the liability of McCarthy, who will hereafter be referred to as the defendant. The accident occurred on the morning of September 19, 1904, which was a pleasant day. For some time before this a general contractor had been at work making changes and alterations in the store. This work was still in progress on the day of the injury. The plaintiff had often transacted business at the store, and when she reached it on the day in question she saw that scaffolding was built across the front, that the old entrance had been closed, and that a new entrance had been constructed, which consisted of a narrow passageway, somewhat darkened by the overhead scaffold, leading into the store from the sidewalk. The door, which was half the ordinary size, was open, and it was necessary to ascend two steps before reaching it There were other indications of repairs and alterations in progress. The plaintiff testified that as she went into the store she noticed mortar or plaster upon the steps, some of which was dry and powdery, as though it had been trampled on and spread around, and some in lumps, and she had to pick her way into the store. As she came out of the store, after having remained there about five minutes, she slipped, but did not know whether she stepped upon the powdery substance or upon a lump. There was other evidence that the steps were covered with a substance that looked like mortar, 'which had been dropped in a splash and gradually dried; part of it had been walked on; part of it had been dried and was broken off and had been scattered over the steps; there were bunches or collections of mortar there and also powdered mortar in considerable quantities; some of the bunches were attached to the step, and some loose rolling about under foot; * * * some of the mortar or plaster had been tracked into the store, upon the floor near the door,' and also that some of the substance had been tracked upon the sidewalk.

The question as to the plaintiff's due care, although close was properly submitted to the jury. Albeit she observed the presence upon the steps of the powdered and lumped mortar before she entered, and had to pick her way along and feared that she might slip. The door was open leading into the store and business was in fact being conducted there as usual. An invitation on the part of the defendant was thus held out to customers to enter his store, which to some extent carried an implication of safety, if the invitation was accepted. The principle is too well settled to require a citation of authorities to support it, that mere knowledge of the danger of doing a certain act without a full appreciation of the risk involved is not sufficient to preclude a plaintiff from recovery, even though there may be added to the knowledge of danger a comprehension of some risk. It is still in most cases a question of fact whether, taking into account all the circumstances, including the knowledge and appreciation as well as every other material condition, the plaintiff is guilty of such negligence as to preclude recovery. Such knowledge and appreciation no doubt oftentimes, perhaps generally, constitute weighty evidence of negligence. They...