Kees v. William Filene's Sons Co.

• Decision Date: 31 March 1937
• Citation: 8 N.E.2d 8,297 Mass. 142
• Parties: REGINA KEES v. WM. FILENE'S SONS COMPANY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

297 Mass. 142

8 N.E.2d 8

REGINA KEES v. WM. FILENE'S SONS COMPANY.

Supreme Judicial Court of Massachusetts, Suffolk.

March 31, 1937

May 15, 1936.

Present: CROSBY PIERCE, DONAHUE, LUMMUS, & QUA, JJ.

Agency, Scope of authority. Negligence, Shoe shining stand. Proximate Cause.

Evidence warranted findings that an employee of the proprietor of a shoe shining stand, in responding to a request by a customer for assistance in getting down from the stand, acted within the scope of his employment, and that he was negligent in the manner in which he performed that service, thereby causing the customer to fall.

TORT. Writ in the Superior Court dated April 23, 1931. The action was tried before Sisk, J., who ordered a verdict for the defendant. The plaintiff alleged exceptions.

J. F. Dunn, Jr. for the plaintiff.

K.

C. Parker, for the defendant.

DONAHUE, J. The defendant operated in its store a shoe shining stand. While the shoes of patrons were being shined they sat in chairs on an elevated platform two and one half feet above the floor. Below this there was a tread or lower platform which must be used by patrons in reaching and in leaving the platform where the chairs were located. In the lower platform were supports for the feet of customers while their shoes were being shined, which are referred to in the record as "shoe trees."

The plaintiff, a woman sixty-eight years of age, seated herself in one of the chairs at the stand without assistance and had her shoes polished by an employee of the defendant. When that operation was completed the employee went to one side a distance of about six feet and made out a charge slip for the work done while the plaintiff remained seated in the chair. When the employee had made out the charge slip the plaintiff beckoned to him twice and said that he must help her as she could not get down from the stand alone. He made no response. The plaintiff continued to sit in the chair and when she "caught his eye again . . . beckoned to him" and said "you must give me your shoulder or your arm and help me down." Thereupon he walked to the stand and stood in front of her chair, looking at her, and near enough so that she could put her hand on his shoulder. The plaintiff then stood up and started to take a step down with her hand outstretched to reach his shoulder, when he moved aside and she fell, fracturing her hip. There was a sign in front of her as she sat in her chair warning against skirts catching. After she started to move her skirt caught on one of the shoe trees but she testified that she did not think that was the cause of her fall. The foregoing is a summary of the plaintiff's testimony.

The employee testified that when he finished polishing the plaintiff's shoes he stepped aside about a foot and a half, telling the plaintiff to watch her step, that he remained there while making out a charge slip and was there when the plaintiff fell, that the plaintiff did not ask him for assistance and he saw nothing indicating the need of any help and that he was not conscious of having made any movement as the plaintiff was starting to go down. The defendant's foreman in charge of the stand testified that no rule had been made by the defendant and no instructions had been given by him to the effect that...