Goodwin v. E.B. Nelson Grocery Co.
| Decision Date | 29 June 1921 |
| Citation | 239 Mass. 232,132 N.E. 51 |
| Parties | GOODWIN v. E. B. NELSON GROCERY CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Suffolk County; Lloyd E. White, Judge.
Action by Fannie E. Goodwin against the E. B. Nelson Grocery Company for personal injuries received from being bitten and scratched by defendant's cat, while plaintiff was a customer in defendant's store. Directed verdict for defendant, and plaintiff brings exceptions. Exceptions overruled.
The answer was a general denial, and an averment that plaintiff was not in the exercise of due care, and that her carelessness contributed to the accident. According to plaintiff's testimony, the cat was engaged in a fight with plaintiff's dog, and after they had separated she took hold of the cat's paw to prevent a continuance of the fight, and was bitten and scratched by it.Fowler, Bauer & Kenney, of Boston, for plaintiff.
George E. Mears, of Boston, for defendant.
[1] This is an action of tort, wherein the plaintiff seeks to recover compensation for injuries received by her from a cat of the defendant while a customer in its store. It is essential for the plaintiff to prove due care on her own part in order to recover. Hathaway v. Tinkham, 148 Mass. 85, 88, 19 N. E. 18;Raymond v. Hodgson, 161 Mass. 184, 36 N. E. 791;Warrick v. Farley, 95 Neb. 565, 572, 145 N. W. 1020,51 L. R. A. (N. S.) 45. The plaintiff testified to a fight between her dog, which she called into the store, and the defendant's cat. Then she says that they became separated and the cat was--
[3] Under these circumstances, when there was no fight going on at all, without looking after her own property, the dog, the plaintiff ‘reached down * * * and took hold of the cat by the front paw.’ That is the plaintiff's own testimony. It is not open to doubt or question. She is bound by it. Sullivan v. Boston Elevated Railway, 224 Mass. 405, 112 N. E. 1025. It shows that her conduct was negligent. That she was bitten and scratched was to have been expected in the ordinary course of events. Any sort of prudence would have prompted her to let a strange cat alone under such circumstances. She testified that she imagined the cat must have been ‘somewhat excited,’ ‘having just had a scuffle with the dog.’ Due care could have been satisfied only by keeping away from the cat, with whose nature she was wholly unacquainted, under these conditions. Her statement that ‘because the cat had attacked the dog in the first place and I thought she might again; it seemed very reasonable to me,’ is no excuse for meddling with a strange animal under the circumstances disclosed. There is nothing in the facts to warrant such a notion on the plaintiff's part. Everything had become peaceful. If, however, there was danger of a recurrence of trouble, that gave her no right to interfere with an animal which did not belong to her and which she had never seen before. If there was any justification for her fear, the plain course for the plaintiff to pursue was to get her dog and keep him out of harm's way. She voluntarily submitted hereself to way. She voluntarily submitted herself to danger and unnecessarily exposed herself. facts from Matteson v. Strong, 159 Mass. 497, 34 N. E. 1077.
The plaintiff is not aided by St. 1914, c. 553. Her own testimony shows that she was negligent. The case in this aspect is governed by Pigeon v. Massachusetts Northeastern Street Railway, 230 Mass. 392, 119 N. E. 762.
It is necessary for the plaintiff to show as ground of recovery that the defendant committed a breach of some legal duty owed by it to her. There can be no negligence without some act or omission in violation of a legal duty. Bernabeo v. Kaulback, 226 Mass. 128, 131, 115 N. E. 279. The defendant, by maintaining its retail store and thus impliedly soliciting the patronage of the plaintiff, assumed toward her the obligation to keep the premises in a condition reasonable safe for her use as a customer while she...
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...or keeper knew or should have known of the dog's vicious propensities. Id. at 161-162, 186 N.E. 71. See Goodwin v. E.B. Nelson Grocery Co., 239 Mass. 232, 234, 132 N.E. 51 (1921) (storekeeper not liable to customer for caused by domestic cat where no evidence that cat was vicious). Without ......
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