O'Leary v. Smith

• Decision Date: 27 February 1926
• Citation: 255 Mass. 121,150 N.E. 878
• Parties: O'LEARY v. SMITH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

255 Mass. 121

150 N.E. 878

O'LEARY

v.SMITH.

Supreme Judicial Court of Massachusetts, Essex.

Feb. 27, 1926.

Exceptions from Superior Court, Essex County; W. Thayer, Judge.

Action of tort by Ida F. O'Leary against William Smith to recover for personal injuries received while, as a customer, she was about to enter defendant's restaurant. Defendant's motion for directed verdict was denied, and he excepts. Exceptions sustained.

J. J. Ryan and J. P. Cleary, both of Haverhill, for plaintiff.

Badger, Pratt, Doyle & Badger, of Boston (L. C. Doyle, of Boston, of counsel), for defendant.

PIERCE, J.

[1] There was evidence that the plaintiff, on January 9, 1922, at 7 a. m., received personal injuries while as a customer, she was about to enter the defendant's restaurant. At the conclusion of the evidence the defendant moved in writing that a verdict be directed in his favor; the motion was denied, and the defendant excepted. The case is before this court after a verdict for the plaintiff.

There was evidence that the plaintiff first came to a vestibule which was raised slightly from the sidewalk; that there was no light in the vestibule, which had a storm door at its outer end, adjacent to the street, with a small window in the door about two thirds of the way up, and there were wooden sides without windows, which met the storm door from the sides of the vestibule opening; that it was dark there; and that the plaintiff was accustomed to passing in and out of that restaurant, without any light in the vestibule.

The evidence tended to show that the plaintiff stepped in this vestibule and her foot slipped on something soft and she fell backward, receiving the injury for which she brought this action. There was further evidence that ‘at the time her foot slipped she had one foot on the sidewalk and one on the vestibule and it was the foot on the vestibule which slipped; that she looked upon her shoes and saw there was something dirty on the side of her shoe; it seemed like something that had been spilled; that it was reddish brown in color and looked like apple pie or something like that’; and there was a similar substance on the floor of the vestibule. In addition there was evidence that there was dirt and cigarette stubs upon the floor of the vestibule.

Immediately following the accident the plaintiff entered the restaurant, saw the defendant and told him about it. In the conversation which followed, in substance he asked her what she fell on and she said she did not know; that she slipped on something and fell backwards; that the defendant said he had not had time to look around and clean up; that one of his men had got through...