Jennings v. Tompkins
| Decision Date | 03 January 1902 |
| Parties | JENNINGS v. TOMPKINS. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
S. H. Tyng and Peter P. Porter, for plaintiff.
John Lowell and Samuel H. Smith, for defendant.
The plaintiff in this case had purchased a seat in the fourth row of the gallery in the defendant's theater, and while walking down the wooden steps of the aisle to go out he fell, and seriously injured his knee. He testified that he felt the stair give slightly, and that his heel caught, and he fell face downwards. The plaintiff also introduced evidence that the tread of the stair in question was made of a 7/8-inch board; that it did not project over the riser on which it rested; that it was worn thin by use, and that there was a nail protruding about 1/16 of an inch; that the board gave a little when stepped on, and that when a person stepped on the step the nail stuck up about 3/16 of an inch. We think that the jury were authorized in finding that the plaintiff's heel caught on this nail. This case, therefore, presents the general question how far a board can be allowed to be worn down by use without its being a defect as against persons who have a right to use it. The line must be drawn somewhere, and it is necessarily to some extent an arbitrary matter where it is to be drawn. We are of opinion that if the board is worn so that a nail projects 3/16 of an inch there is not a defect.
Exceptions overruled.
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