Kennedy v. Cherry & Webb Co.

• Decision Date: 29 May 1929
• Citation: 166 N.E. 562,267 Mass. 217
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: KENNEDY v. CHERRY & WEBB CO., LOWELL.

267 Mass. 217

166 N.E. 562

KENNEDY

v.CHERRY & WEBB CO., LOWELL.

Supreme Judicial Court of Massachusetts, Middlesex.

May 29, 1929.

Report from Superior Court, Middlesex County; Morton, Judge.

Action by Mary F. Kennedy against the Cherry & Webb Company, Lowell. Verdict for defendant. On report. New trial granted.

J. P. Cassidy, of Lowell, for plaintiff.

J. H. Gilbride, of Lowell, for defendant.

FIELD, J.

This is an action of tort for personal injuries resulting to the plaintiff from a fall in the defendant's store, in Lowell. It was tried before a judge of the Superior Court and a jury. The judge directed the jury to return a verdict for the defendant, and reported the case ‘for the determination of the question whether there was any evidence of defendant's negligence requiring the submission of this case to the jury. If there was any evidence of defendant's negligence, plaintiff is to be entitled to a new trial, otherwise judgment to be entered for defendant.’

The evidence reported is as follows: ‘The defendant operates the largest department store in Lowell engaged in the sale of women's wearing apparel. The plaintiff, on July 7, 1927, some time between 10 a. m. and 12 noon, accompanied by her sister, went to the defendant's store and made some purchases. Some time before this date repairs had been made in the defendant's store, and this was the first time the plaintiff had been on the premises since the making of the repairs. Defendant's store, running north and south, extended from Merrimack Street to Lee Street and easterly extended to John Street with entrances on both Merrimack and John Streets. A difference of levels existed between the south and north portions of the ground floor of the premises; the latter being about eight inches higher than the former. The north part of the store was reached by a ramp or incline leading from the lower to the upper level. At the easterly part of this incline a platform existed on an even level with the floor of the north portion of the premises and continued southerly on such level to a point from which the ramp or incline started, leaving a vertical distance of about eight inches between the top and base of the platform at the southerly end of the incline. There was an aisle at the southerly end of the platform running easterly to the John Street entrance and on the same level with the southerly part of the premises. This aisle met at about a right angle the aisle using the incline. The northerly part of the platform was occupied by bookcases, the southerly part was unoccupied for some distance from the end of the platform. No railing existed on this end and no warning signs were posted. There was an advertised sale being held in the store and it was crowded with people. The plaintiff, after making her purchases, walked up the incline to a shoe counter and shortly thereafter she walked down the incline intending to turn into the easterly aisle. She did not know of nor observe that the end of the platform protruded above the incline and her toe was caught against the platform, throwing her down causing her personal injuries, including a fractured nose. The place where the accident happened was well lighted.’

We cannot say as matter of law that there was no evidence of negligence on the part of the defendant. In our opinion the case should have been submitted to the jury.

The evidence tended to show that the plaintiff received personal injuries when she was in that part of the defendant's store which was...