Goldsmith v. Ricles

• Decision Date: 13 August 1930
• Parties: GOLDSMITH v. RICLES et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

272 Mass. 391

172 N.E. 526

GOLDSMITH

v.RICLES et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Aug. 13, 1930.

Exceptions from Superior Court, Suffolk County; J. H. Sisk, Judge.

Action by Norma Goldsmith, p. p. a., against Edith B. Ricles and others. Verdict for plaintiff. On defendants' exceptions.

Exceptions overruled.

E. R. Greenhood, of Boston, for plaintiff.

J. T. Pugh, of Boston, for defendants.

SANDERSON, J.

This is an action of tort for personal injuries sustained on February 18, 1927, by the plaintiff, a child about eight years of age, while entering the outer vestibule door of an apartment house which was under the control of the defendants and used in common by all the tenants. The door was equipped with an automatic closing device. The plaintiff, whose home was in an adjoining building, was entering the apartment house in company with and at the invitation of his cousin, whose father, named Goldsmith, with whom the cousin lived, was a tenant therein of the defendants. They were on their way to the apartment of this tenant. While entering the building one of the plaintiff's fingers was injured by reason of the sudden closing of the door upon his hand. The plaintiff testified that he had passed in and out of this door almost every day before the accident, and on the prior occasions when he pushed the door open it closed rapidly until within a foot of the door jamb, when it stopped and closed slowly the rest of the way. At the time of the accident he pushed the door in with one hand and shoulder, while holding a piece of cake in the other hand, and as he was stepping inside the vestibule the cake dropped and when he reached to pick it up the door suddenly ‘slammed back on him’ without stopping or slowing down and he could not get his hand out in time to avoid the accident. The sudden closing of the door could have been found to be due to its being out of repair.

A witness called by the plaintiff testified that the automatic closing device had been out of order a few weeks before the accident, that she would not say it was two weeks, but two or three, causing the door to shut so violently that it shook the building; that she had notified the defendant Harris Ricles by telephone that the door was not in good condition and he ought to ‘fix it up’; and that she talked to Harris Ricles when he came for the rent which she paid him about the first of February. Another witness testified that the condition of the front door spring for about three weeks before the accident was such that when it closed the whole house would shake and that during that time she told the defendant Harris Ricles that it was out of order. One of the defendants testified that as soon as he acquired title he examined the condition of the premises and found the door spring in perfect working order.

Goldsmith had been tenant of a former owner named Glazer. The defendants held a mortgage on the property, and on December 15, 1926, entered for breach of condition and sometime thereafter through their attorney notified the tenants in the building to pay all rents to the defendants instead of to Glazer. and the defendants saw some of the tenants in January and collected rents from some of them for that month. On January 18, 1927, they foreclosed the mortgage by public sale, buying the property themselves and taking title by deed dated February 4, 1927. The defendants testified that immediately after acquiring title they demanded rent from Goldsmith for the month of February, and on February 7 they collected rent from him for that month. Mrs. Goldsmith testified that about February 1 the defendant Harris Ricles came for the rent. and she paid it to him at about that date. There was no testimony that the defendants asked Goldsmith for rent before February 1.

The judge submitted two questions to the jury: (1) ‘When did the door check become out of order, if you find it was out of order?’ to which they answered: ‘On or about February 7, 1927’; (2) ‘When was the first payment of rent made by Samuel Goldsmith to the defendants?’ to which they answered: ‘February 7th, 1927.’

At the close of the evidence the defendants made a motion for a directed verdict, which was denied. The jury returned a verdict for the plaintiff, and before recording it the judge reserved leave to enter a verdict for the defendants if, upon the exceptions take on the questions of law reserved, the court or the Supreme Judicial Court should decide that such verdict for the defendants should have been entered. After the...