Glynn v. Blomerth

• Decision Date: 28 October 1942
• Citation: 312 Mass. 299,44 N.E.2d 784
• Parties: GLYNN v. BLOMERTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

312 Mass. 299

44 N.E.2d 784

GLYNN

v.BLOMERTH.

Supreme Judicial Court of Massachusetts, Suffolk.

Oct. 28, 1942.

Exceptions from Superior Court, Suffolk County; Fate, Judge.

Action of tort by Annie Glynn against Maurice V. Blomerth to recover for injuries sustained by reason of ice on steps owned by and under control of defendant. To review the entry of a verdict for defendant under leave reserved after jury had returned verdict for plaintiff, plaintiff brings exceptions.

Exceptions overruled.

Before FIELD, C. J., and LUMMUS, QUA, DOLAN, and COX, JJ.

H. L. Barrett, of Boston, for plaintiff.

J. A. Bradley, of Boston, for defendant.

DOLAN, Justice.

This is an action of tort to recover compensation for personal injuries sustained by the plaintiff as a result of falling on the ‘front steps' of premises, admitted by the defendant to have been owned by him and under his control at the time of the accident. He also admitted due receipt of proper notice of the accident.

The declaration is in two counts, recited to be for the same cause of action. At the close of the evidence the defendant moved for a directed verdict. The judge directed a verdict for the defendant on the second count, but denied the defendant's motion as to the first count, subject to the defendant's exception. The case was submitted to the jury who returned (G.L.[Ter.Ed.] c. 231, § 120) a verdict for the plaintiff, which was recorded with leave reserved under and thereafter, on motion of the defendant, the judge entered a verdict for him under the leave reserved. The case comes before us on the plaintiff's exceptions to that action of the judge.

The first count of the plaintiff's declaration alleges that on February 2, 1939, she was lawfully on the premises in question, which were under the control of the defendant, ‘when she was caused to fall and sustain injuries by reason of stepping on an unnatural accumulation of snow and ice on the premises * * * which was cause to be thereon all owing to the negligence of the defendant, his agents or servants.’ The defendant's answer contained a general denial and alleged contributory negligence on the part of the plaintiff.

The plaintiff's exception to the entry of the verdict for the defendant under leave reserved presents the question of law to be considered. ‘The burden of proof rested upon the plaintiff to establish the allegations of his declaration. The test to determine the correctness of the action of the trial judge in ordering the entry of a verdict for a defendant under leave reserved is whether the evidence in its aspect most favorable to the plaintiff could rightly be found to support the contentions essential to the maintenance of his cause of action.’ Holton v. Shepard, 291 Mass. 513, 515, 197 N.E. 460, 461, and cases cited. The case is to be treated as though a verdict had been directed for the defendant upon his motion therefor. Curtis v. Comerford, 283 Mass. 589, 591, 186 N.E. 585. Thus considered, there was evidence that would have warranted the jury in finding the following facts. The plaintiff was employed daily to do housework by a tenant of the defendant who occupied an apartment in the premises in question. The plaintiff worked there each day, usually from ‘nine o'clock until half past six,’ when she would return to her own home. On the day the accident happened, she arrived at the premises about nine o'clock. The front steps leading to the tenant's apartment were then ‘kind of slushy.’ In the afternoon it ‘rained and snowed and sleeted.’ At about 6:30 P. M., proceeding to leave the premises, the plaintiff saw a coating of ice on the four stone steps leading to the sidewalk. She placed her foot on the top step, slipped and fell down the four steps and onto the...